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8
Court of Criminal Appeal 18 September 2015

BR v R

[2015] NSWCCA 255

Sexual offences
APPEAL SENTENCING SENTENCING WHETHER NON PAROLE PERIOD

Citation: BR v R [2015] NSWCCA 255
Court: New South Wales Court of Criminal Appeal
Date: 18 September 2015
Judges: Bathurst CJ, Simpson J, R A Hulme J

Background

The applicant pleaded guilty to 41 offences in the District Court in March 2014, comprising 25 charges to which he entered guilty pleas and 16 further offences taken into account on a Form 1 (a procedure allowing additional offences to be considered at sentencing without separate conviction). The offences involved five female victims aged between 5 and 12 years and spanned a seven-month period from July 2011 to February 2012. A further offence of possessing child abuse material was discovered in May 2012 when the applicant was searched during a court appearance.

The offences included sexual intercourse with children under 10 years, aggravated sexual intercourse with children aged 10 to 14, aggravated indecent assault, grooming, inciting children to commit acts of indecency while being filmed, using children for the production of child abuse material, and possessing child abuse material. The applicant had gained access to the victims through a community organisation, where he had cultivated trust with parents and grandparents of the children.

The District Court imposed an aggregate sentence of 23 years' imprisonment with a non-parole period of 17 years under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the indicative sentences nominated by the sentencing judge for individual offences were manifestly excessive
  • Whether the aggregate sentence of 23 years was manifestly excessive
  • Whether a 25 per cent discount for a plea of guilty carried an implied finding that the applicant had demonstrated genuine remorse
  • Whether the non-parole period adequately reflected the sentencing judge's finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

The Court of Criminal Appeal found no merit in any of the grounds of appeal, though it granted an extension of time to seek leave, noting the length and complexity of the sentencing exercise. Simpson J, with whom Bathurst CJ agreed, delivered the principal reasons; R A Hulme J provided separate concurring reasons.

On the question of manifest excess, the Court held that neither the individual indicative sentences nor the aggregate sentence were manifestly excessive, having regard to the extreme seriousness of the offending. The conduct spanned multiple victims, the youngest being only 5 years old, involved significant breach of trust, included production and possession of child abuse material, and extended over seven months. The Court found the overall criminality to be of the gravest kind.

On the question of remorse, the Court rejected the submission that a 25 per cent guilty plea discount implicitly incorporated a finding of genuine remorse. The discount was awarded solely for the utilitarian value of the plea, consistent with the approach established in R v Thomson; R v Houlton. The applicant sought to use an implied finding of remorse as a basis to argue the sentence was too severe, but the Court found no such finding had been made.

On special circumstances, the Court accepted that the sentencing judge had found special circumstances under s 44(2), which ordinarily permits a reduction in the proportion of the sentence spent on parole. The Court found that the non-parole period as imposed adequately reflected that finding and that no error arose from the way it had been applied.

Orders Made

  • Leave to appeal granted (including any necessary extension of time)
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's decision to apply a 25 per cent discount for a guilty plea does not, without more, carry any implied finding of genuine remorse. The Court of Criminal Appeal confirmed the discount reflected only the utilitarian value of the plea, as established in R v Thomson; R v Houlton.

  • Where an offender commits a prolonged, serious course of sexual offending against multiple young children involving breach of trust, production of child abuse material, and offences carrying maximum penalties including life imprisonment, a substantial aggregate sentence will not readily be characterised as manifestly excessive.

  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), indicative sentences for individual offences remain subject to appellate scrutiny for manifest excess, even where an aggregate sentence has been imposed. No error was found in either the indicative sentences or the aggregate here.

  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not mandate any particular reduction in the non-parole period. The Court of Criminal Appeal found the reduction as applied was adequate and disclosed no error.

  • In dismissing the appeal, the Court reinforced that the totality of a course of extremely serious offending against young children will weigh heavily against a finding of manifest excess, even where the aggregate sentence is lengthy.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 53A, Pt 3 Div 3, Pt 4 Div 1A
- Crimes Act 1900 (NSW), ss 61M(2), 61N(1), 61O(1), 61O(2), 61O(2A), 66A(2), 66C(1), 66C(2), 66EB(3), 91G(1)(a), 91H(2)

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Booth [2009] NSWCCA 89
- R v De Leeuw [2015] NSWCCA 183
- R v Porte [2015] NSWCCA 174