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Court of Criminal Appeal 9 October 2015

R v JP

[2015] NSWCCA 267

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE VICTIM AGED 6 WEEKS OFFENDER MOTHER OF VICTIM OFFENDING OBJECTIVELY VERY SERIOUS RESIDUAL DISCRETION SHOULD BE APPLIED

Citation: R v JP [2015] NSWCCA 267
Court: Court of Criminal Appeal, NSW
Date: 9 October 2015
Judges: Hoeben CJ at CL, Price J, Button J

Background

The respondent, a 25-year-old mother with an intellectual disability, pleaded guilty in the Local Court to one count of sexual intercourse with a child under 10 under authority, contrary to s 66A(2) of the Crimes Act 1900. The victim was her six-week-old daughter. Two additional offences of producing and disseminating child abuse material under s 91H(2) were taken into account on a Form 1 (a procedure by which related charges are acknowledged at sentencing without separate conviction).

The offending occurred during a Skype conversation with a co-offender, who had coerced and pressured the respondent over an extended period. The sentencing judge found that the respondent acted not for her own sexual gratification, but in response to the co-offender's demands, and that she transmitted two images of the act to him.

In the District Court, Haesler SC DCJ sentenced the respondent to 1 year and 9 months imprisonment, fully suspended on conditions including community supervision, participation in sex offender programs, and psychological treatment. The Director of Public Prosecutions appealed on the ground that the sentence was manifestly inadequate.

  • Whether the sentencing judge erred in characterising the objective seriousness of the offending as being "at the very bottom of the range" of crimes of this kind
  • Whether the suspended sentence was manifestly inadequate for an offence carrying a maximum of life imprisonment and a standard non-parole period of 15 years
  • Whether, if the sentence was manifestly inadequate, the Court of Criminal Appeal should nonetheless exercise its residual discretion not to resentence the respondent

Decision

The three judges divided on whether the Crown had established the ground of appeal, though all agreed on the final order. Hoeben CJ at CL characterised the offence as serious, placing it "towards the bottom rather than at the bottom" of the range, and found some error in the sentencing judge's assessment of objective gravity. Price J and Button J went further, each concluding that the offending was objectively very serious: the abuse of a six-week-old baby by her own mother, carried out for the purpose of transmitting images for another person's gratification, could not be placed at the low end of the range.

Price J emphasised that the child's inability to understand or appreciate what was happening did not reduce the objective seriousness of the offence. Rather, the infant's helplessness and total dependence on her parent constituted a serious aggravating factor. The gross breach of the mother's position of trust was a further aggravating feature. Both Price J and Button J concluded that no sentence other than a period of full-time imprisonment had been available to the sentencing judge, and that the suspended sentence was manifestly inadequate.

All three judges agreed, however, that the Court should exercise its residual discretion not to intervene by resentencing the respondent. The discretion was engaged by a combination of compelling circumstances: the respondent's significant intellectual disability, her isolation and vulnerability at the time of the offending, her prior good character, genuine remorse, the period already spent in pre-sentence custody, the extra-curial punishment she had suffered (including the permanent removal of her children), and the limited availability of treatment programs in custody compared to the community.

Accordingly, despite the majority finding that the original sentence was manifestly inadequate, the Court declined to substitute a harsher sentence and dismissed the Crown appeal.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an infant victim's inability to understand or appreciate sexual abuse does not reduce the objective seriousness of the offence; helplessness and total vulnerability are aggravating, not mitigating, features.
  • A gross breach of parental trust, particularly where a mother is the perpetrator against a wholly dependent infant, constitutes a serious aggravating factor for the purposes of sentencing under the Crimes Sentencing Procedure Act 1999.
  • Even where a Crown appeal against sentence succeeds on the ground of manifest inadequacy, the court retains a residual discretion not to resentence the offender where compelling circumstances make re-incarceration unjust.
  • In exercising that residual discretion, relevant factors included the respondent's intellectual disability, the period already served in custody, the significant extra-curial consequences of conviction, genuine remorse, and the relative availability of treatment programs in the community compared to custody.
  • The principle of denunciation under s 3A(f) of the Crimes (Sentencing Procedure) Act 1999 carries significant weight in cases involving the sexual abuse of very young children, even where an offender presents a strong subjective case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(2), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(f), 12, 32
- Criminal Appeal Act 1912 (NSW), ss 5D, 5E(1)
- Criminal Procedure Act 1986 (NSW), ss 165-167

Cases:
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Green v R; Quinn v R [2011] HCA 49; 244 CLR 462
- CMB v Attorney General for NSW [2015] HCA 9; 89 ALJR 407
- Markarian v R [2005] HCA 25; 228 CLR 357
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- R v Dinsdale [2000] HCA 54; 202 CLR 321
- Attorney General's Application under Section 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
- EG v R [2015] NSWCCA 21
- Hoskins v R [2015] NSWCCA 245
- Williams v R [2012] NSWCCA 172
- Mulato v R [2006] NSWCCA 282