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10
Court of Criminal Appeal 8 April 2015

KAB v R

[2015] NSWCCA 55

Sexual offences
CRIMINAL LAW SENTENCE APPEAL APPEAL OUT OF TIME ERROR AS TO APPLICATION OF STANDARD NON PAROLE PERIOD RELEVANCE OF CHILDHOOD SEXUAL ABUSE

Citation: KAB v R [2015] NSWCCA 55
Court: NSW Court of Criminal Appeal
Date: 8 April 2015
Judge(s): Ward JA; Simpson J; Wilson J

Background

The applicant had pleaded guilty in the District Court at East Maitland in 2009 to ten counts of child sexual assault offences committed against his two stepdaughters over a period of approximately nine years. The offences ranged from aggravated indecent assault to sexual intercourse with persons under special care. He was sentenced on 25 November 2009 to a combination of fixed and non-parole period terms, with the head sentence structured around the most serious charges.

The applicant sought leave to appeal against his sentence approximately four years out of time, requiring the Court of Criminal Appeal to first consider whether an extension of time should be granted. He raised multiple grounds, including alleged errors in the application of the standard non-parole period, the treatment of his good character, the relevance of his childhood sexual abuse as a mitigating factor, a denial of procedural fairness, and manifest excess in the overall sentence.

  • Whether an extension of time of almost four years should be granted to pursue a sentence appeal
  • Whether the sentencing judge erred in applying the standard non-parole period
  • Whether sufficient weight was given to the applicant's good character and his own history of childhood sexual abuse
  • Whether the sentencing judge denied procedural fairness by taking into account an alleged "high risk of pregnancy" arising from one offence, without that risk having been raised as a sentencing consideration or proved by evidence
  • Whether the overall sentence was manifestly excessive

Decision

The Court unanimously refused the application for an extension of time. Wilson J found that no exceptional circumstances had been advanced to justify the delay. The applicant was legally represented and had been aware of the sentences imposed; there was no adequate explanation for waiting nearly four years. The lack of merit in the proposed grounds of appeal compounded the case against granting the extension.

On the substantive grounds, Wilson J found no demonstrated error in the sentencing judge's approach to the standard non-parole period, the treatment of good character, or the relevance of the applicant's own history of childhood sexual abuse. The overall sentence was not found to be manifestly excessive given the gravity and duration of the offending.

The procedural fairness ground attracted a notable divergence between Wilson J and Simpson J. Wilson J was not persuaded that any denial of procedural fairness had occurred at the level required to affect the result. Simpson J disagreed on the underlying question, concluding that the sentencing judge had erred by taking into account the "high risk of pregnancy" flowing from one offence (Count 5) when that risk was neither proved by evidence nor an agreed fact, and had not been flagged to the applicant as a circumstance that might escalate the objective seriousness of the offence. The applicant asserted he had undergone a vasectomy, meaning the stated risk was not an established fact.

Despite finding the error, Simpson J concluded it had minimal, if any, impact on the overall sentence. The sentence for Count 5 was served wholly concurrently with other sentences, meaning no portion of the total sentence was attributable solely to that count. On that basis, Simpson J agreed there was no proper basis to exercise the re-sentencing discretion and joined in refusing the extension of time.

Orders Made

  • The application for an extension of time in which to appeal is refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that considerable delay in filing a sentence appeal requires exceptional circumstances before it will be excused, and that legal representation during the original sentencing proceedings weighs against any assumption that delay will be overlooked.
  • A sentencing judge commits an error of procedural fairness by treating an unproved factual matter as an adverse circumstance aggravating the objective seriousness of an offence, particularly where that matter was never raised in the proceedings and the offender had no opportunity to respond (per Simpson J).
  • Even where a procedural fairness error is established, it will not ground re-sentencing if the error had minimal or no impact on the sentence actually imposed, such as where the affected count was served wholly concurrently and contributed nothing independently to the overall sentence.
  • In dismissing each substantive ground, the Court reaffirmed that the community has a strong interest in the finality of criminal proceedings, particularly in matters involving sexual offences against children.
  • Where proposed grounds of appeal lack merit and no compelling explanation for delay exists, both considerations operate together to defeat an application for extension of time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Arja v R [2010] NSWCCA 190
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Edwards v R [2009] NSWCCA 199
- Markarian v R [2005] HCA 25; 228 CLR 357
- Parker v DPP (1992) 28 NSWLR 282
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- R v AGR (Court of Criminal Appeal, 24 July 1998, unreported)
- R v Lawrence (1980) 1 NSWLR 122
- R v MS [2005] NSWCCA 322
- R v Oloitoa [2007] NSWCCA 177
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- Toole v R; Toole v R [2014] NSWCCA 318
- Vuni v R [2006] NSWCCA 171