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23
Court of Criminal Appeal 30 November 2015

Bravo v R

[2015] NSWCCA 302

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE AGGREGATE SENTENCE SENTENCING DISCRETION AGGREGATE SENTENCE IMPOSED WITHIN RANGE APPEAL DISMISSED

Citation: Bravo v R [2015] NSWCCA 302
Court: Court of Criminal Appeal, NSW
Date: 30 November 2015
Judge(s): Beazley P, Johnson J, R A Hulme J (judgment of R A Hulme J)

Background

The applicant (identified by pseudonym to protect the victim's identity) was convicted after trial in the District Court at Penrith of eleven child sexual assault offences against his stepdaughter. The offending spanned approximately two years, during which the victim was aged 9 to 11. The offences ranged from aggravated indecent assault to aggravated sexual intercourse, and included both vaginal and anal penetration on multiple occasions.

The District Court judge sentenced the applicant to an aggregate term of 22 years' imprisonment with a non-parole period of 16 years, commencing 23 May 2014. A number of indicative sentences were set for individual offences as part of the aggregate sentencing process under the Crimes (Sentencing Procedure) Act 1999 (NSW).

The applicant sought leave to appeal against the sentence, raising several alleged errors in the indicative sentences, including a so-called Muldrock error. The Crown conceded some of the alleged errors.

  • Whether the sentencing judge made a Muldrock error (that is, treating the standard non-parole period as a sentencing benchmark in a way inconsistent with the High Court's ruling in Muldrock v The Queen) in fixing indicative sentences for particular counts
  • Whether other errors were made in specifying the indicative sentences
  • Whether, taking into account any errors conceded or established, the Court of Criminal Appeal should exercise its sentencing discretion to impose a different sentence
  • Whether the aggregate sentence of 22 years with a 16-year non-parole period was within the appropriate range

Decision

R A Hulme J (with whom Beazley P and Johnson J agreed) accepted that some errors in the indicative sentences were established, including errors the Crown conceded. In particular, the indicative sentence for count 7 (aggravated sexual intercourse by anal penetration with ejaculation on a child aged 10) was assessed as having been set too high relative to the statutory maximum and the circumstances of that offence.

The Court re-assessed appropriate indicative sentences for each count. Several indicative sentences were revised downward. For instance, the indicative sentence for count 7 was reduced from 20 years to 10 years, and a number of the other indicative sentences were also moderated. The Court did not find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act, declining to follow the primary judge on that question, as the reasons given did not persuade the Court that the statutory parole ratio would produce an inadequate parole period.

Despite those revisions to individual indicative sentences, the Court conducted an overall assessment of the totality of the applicant's criminality. Having done so, it concluded that the appropriate aggregate sentence was no less than the 22 years with a 16-year non-parole period that had been imposed at first instance. Because the aggregate sentence remained within the appropriate range, there was no basis to impose some other sentence, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Errors in individual indicative sentences within an aggregate sentencing structure do not automatically lead to a different outcome on appeal: the Court of Criminal Appeal confirmed that the ultimate question is whether the aggregate sentence itself was within the appropriate range.
  • A Muldrock error arises when a sentencing judge treats the standard non-parole period as a benchmark or starting point rather than as a guide, and the Crown's concession of such an error in this case illustrated that the error can be made even where the sentencing remarks do not explicitly announce that framing.
  • Under s 6(3) of the Criminal Appeal Act 1912 (NSW), the appellate court must be satisfied that "some other sentence warranted in law" should be substituted before it will intervene; identifying discrete errors in indicative sentences is not sufficient if the totality of the sentence remains appropriate.
  • In dismissing the appeal, the Court reassessed all indicative sentences independently and, in doing so, found the aggregate custodial term appropriate for the scale and gravity of eleven offences involving repeated sexual abuse of a child within the family home over a two-year period.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act were not made out simply because sentences were accumulated, it was the applicant's first time in custody, or rehabilitation after release was needed; those considerations did not persuade the Court that the statutory parole ratio would be inadequate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66A, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- JM v R [2014] NSWCCA 297
- R v Gavel [2014] NSWCCA 56
- McIntosh v R [2015] NSWCCA 184
- Saddler v R [2009] NSWCCA 83; 194 A Crim R 452