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Court of Criminal Appeal 6 February 2015

Regina v RM

[2015] NSWCCA 4

Sexual offences
CRIMINAL LAW CROWN SENTENCE APPEAL CHILD SEX OFFENCES SEVEN CHARGES RESPONDENT PLEADED GUILTY SENTENCE

Citation: Regina v RM [2015] NSWCCA 4
Court: NSW Court of Criminal Appeal
Date: 6 February 2015
Judges: Ward JA and Wilson J (majority); R A Hulme J (separate judgment)

Background

The respondent pleaded guilty to seven charges of child sex offences committed against a neighbour's child. The offending spanned approximately three years and escalated from fondling to oral sex and an attempted act of anal intercourse. All offences were committed when the respondent was a juvenile, with the conduct commencing when he was 13 years old and the final offence occurring the day after his 17th birthday.

The complainant was aged between approximately five and nine years old throughout the period of offending. The complainant did not disclose the abuse until eight years after it ceased. Upon disclosure, the respondent acknowledged his conduct, cooperated with authorities, and pleaded guilty at the earliest opportunity, demonstrating what the sentencing judge found to be profound remorse.

At first instance, Charteris DCJ in the District Court sentenced the respondent to a single five-year good behaviour bond for five of the charges, and an aggregate suspended sentence of two years' imprisonment (with a six-month non-parole period indicated) for the remaining two charges. The Crown appealed on the basis that the sentences were manifestly inadequate and that various legal errors had been made.

  • Whether the sentencing judge erred in identifying and applying a discount for remorse
  • Whether it was lawful to impose a single good behaviour bond for five separate offences
  • Whether the imposition of a suspended aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was legally permissible
  • Whether the indicated individual sentences revealed error in the aggregate sentence
  • Whether indicating non-parole periods for the individual sentences was an error
  • Whether the overall sentence was manifestly inadequate

Decision

The Court of Criminal Appeal allowed the appeal, finding several errors in the sentencing exercise. The majority (Ward JA and Wilson J) held that imposing a single good behaviour bond across five separate offences was a technical legal error, as the legislation required a separate bond for each offence. The imposition of a suspended aggregate sentence was also found to be an error in the circumstances, given that aggregation is not appropriate where the sentences for individual offences are of a different character.

The majority also found error in the judge's approach to the discount for remorse. While remorse was a legitimate mitigating factor, the sentencing remarks suggested the discount applied was more generous than the circumstances warranted, contributing to sentences that were manifestly inadequate for offending of this seriousness.

R A Hulme J agreed that the technical errors required intervention and agreed with the re-sentencing for the first five offences. However, his Honour differed on the approach to re-sentencing for offences 6 and 7. He considered that suspended sentences were not necessarily inadequate given the respondent's youth and the character of the offending as markedly influenced by adolescent immaturity. In his view, but for the technical errors, dismissal of the appeal would have been appropriate.

The majority exercised the residual discretion to re-sentence and replaced the original orders with individual bonds for offences 1 to 5, and individual suspended sentences of imprisonment for offences 6 and 7. Credit of six months was given against the sentences for offences 6 and 7 to reflect the period already served under the original bond conditions.

Orders Made

  • Crown appeal allowed; sentences imposed by Charteris DCJ on 23 July 2014 quashed
  • Offences 1 to 5: for each of the five offences separately, a good behaviour bond of 4 years and 6 months from the date of the appeal decision, with conditions including supervision by the Probation and Parole Service, good behaviour, and notification of residential address changes
  • Offence 6: sentence of 1 year and 6 months' imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, subject to a good behaviour bond of the same duration with equivalent conditions
  • Offence 7: sentence of 7 months' imprisonment, suspended under s 12, subject to a good behaviour bond of 7 months with equivalent conditions

Key Takeaways

  • A single good behaviour bond cannot lawfully be imposed to cover multiple separate offences; the Crimes (Sentencing Procedure) Act 1999 requires a distinct bond for each individual offence to which the order applies.
  • Aggregation of sentences under s 53A of the Crimes (Sentencing Procedure) Act 1999 is not appropriate where the individual sentences are of a different character, such as where some are bonds and others are terms of imprisonment.
  • Where a respondent has already served part of a sentence under an order that is quashed on appeal, the Court of Criminal Appeal may grant credit for time served when re-sentencing.
  • The respondent's juvenile status at the time of all offending was a significant mitigating factor, and the Court acknowledged that the offending could be characterised as markedly influenced by adolescent immaturity, even while finding the original sentences legally deficient.
  • Residual discretion in Crown sentence appeals permits an appellate court to decline to re-sentence even where error is established; here, the majority exercised that discretion to re-sentence, while Hulme J would have exercised it to dismiss the appeal but for the technical errors.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66A, 66B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 53A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- AB v R [2014] NSWCCA 31
- BJS v R [2013] NSWCCA 123
- Burnard v R [2009] NSWCCA 5; (2009) 193 A Crim R 23
- Cahyadi v R [2007] NSWCCA 1
- CL v R [2014] NSWCCA 196
- Cullen v R [2014] NSWCCA 162
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- IE v R [2008] NSWCCA 70; (2008) 183 A Crim R 150
- JL v R [2014] NSWCCA 130
- JM v R [2014] NSWCCA 297
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Martin v R [2014] NSWCCA 124
- MJ v R; CPD v R [2010] NSWCCA 52
- MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93
- Ngati v R [2013] NSWCCA 203
- Oh v R [2010] NSWCCA 148
- Pearce v The Queen [1998] HCA 57; 194 CLR 610