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Court of Criminal Appeal 4 May 2015

R v Feuerstein

[2015] NSWCCA 82

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE PAROLE PERIOD MANIFESTLY INADEQUATE

Citation: R v Feuerstein [2015] NSWCCA 82
Court: Court of Criminal Appeal, New South Wales
Date: 4 May 2015
Judge(s): Hidden J (at [1]), Price J (at [59]), Schmidt J (at [61])

Background

The respondent was tried in the District Court on an indictment charging 25 counts of sexual offences against boys. He was found guilty of 21 of those counts. The offences were committed over a 20-year period, from 1991 to 2011, and involved seven complainants aged between 10 and 16. The offences included aggravated sexual assault, aggravated indecent assault, sexual intercourse with a child, and sexual intercourse without consent. The respondent had a pattern of befriending vulnerable young boys, grooming them with gifts, drugs, and alcohol, and then sexually assaulting them.

The respondent also pleaded guilty on a separate indictment to possessing and disseminating child abuse material. For those two offences, the District Court imposed concurrent fixed terms of 2½ years and 1 year and 3 months. For the 21 trial offences, the sentencing judge imposed an aggregate term of 14 years with a non-parole period of 9 years, commencing 1 June 2012. The total effective sentence was 14½ years with an effective non-parole period of 9½ years.

The Director of Public Prosecutions appealed to the Court of Criminal Appeal, arguing that the sentences were manifestly inadequate and affected by specific errors in the sentencing judge's approach, particularly in the degree of accumulation applied to the indicative sentences.

  • Whether the sentencing judge applied an adequate degree of accumulation to the indicative sentences when arriving at the aggregate sentence for the 21 trial offences.
  • Whether the sentences for the child abuse material offences were adequately accumulated in relation to the trial offences.
  • Whether the overall sentence and the effective non-parole period were manifestly inadequate given the scale and gravity of the offending.

Decision

The Court of Criminal Appeal found that the sentencing judge had not applied sufficient accumulation when constructing the aggregate sentence for the 21 trial offences. Although the indicative sentences for individual offences were not themselves challenged, the degree of concurrency introduced in arriving at the aggregate total was excessive given the breadth and seriousness of the criminality involved across 20 years and seven victims.

The Court also found that the sentencing judge had erred by allowing the fixed term sentences for the child abuse material offences to overlap with the aggregate sentence for the trial offences. Given the principle of totality as applied to the circumstances of this case, the Court concluded that the child abuse offences should not attract any concurrency with the trial offences sentences.

The Court took into account the respondent's personal circumstances, including evidence that his former occupations (including as a security guard and in roles associated with policing) would make custody considerably more difficult and dangerous for him. The Court treated this as a mitigating factor, reducing what the sentence would otherwise have been, but found it was insufficient to justify the level of leniency reflected in the original sentences.

On resentencing, the Court increased the aggregate term for the trial offences to 16 years with a non-parole period of 11 years. The aggregate sentence was ordered to commence on 30 May 2014, immediately following the expiry of the fixed term sentences for the child abuse offences, with no period of concurrency between the two sets of sentences.

Orders Made

  • The Crown appeal is allowed.
  • The sentences imposed by the District Court on 28 November 2013 for the trial offences are set aside.
  • The respondent is resentenced to an aggregate sentence for the trial offences commencing on 30 May 2014, with a total term of 16 years expiring on 30 May 2030 and a non-parole period of 11 years expiring on 30 May 2025.

Key Takeaways

  • An aggregate sentence that introduces excessive concurrency across a large number of serious offences committed against multiple victims over many years may be found manifestly inadequate, even where the indicative sentences for individual offences are themselves unimpeachable.
  • Where separate fixed term sentences and an aggregate sentence address distinct categories of serious offending, the principle of totality does not necessarily require any overlap between them; the Court of Criminal Appeal declined to allow any concurrency between the child abuse material sentences and the trial offences sentence.
  • Evidence that a respondent's former occupation will expose them to greater hardship in custody is a recognised mitigating factor under established High Court authority (AB v The Queen), and the Court accepted and applied it here, though it was insufficient to sustain the original sentencing outcome.
  • Sentencing courts must reflect, through adequate accumulation, the full extent of criminality where an offender has committed numerous serious offences against multiple victims over a prolonged period; the aggregate sentencing mechanism does not permit the effective discounting of a substantial portion of that criminality.
  • In dismissing the notion that the original sentence adequately reflected the totality of the respondent's conduct, the Court of Criminal Appeal emphasised the need for an extended period of post-release supervision, consistent with the sentencing judge's own conclusion on that point.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J(1), 61M(1), 66C(2)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Administration of Sentences) Regulation 2014 (NSW)
- Sentencing Act 1989 (NSW)
- Weapons Prohibition Act 1998 (NSW)

Cases:
- AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Markarian v R [2005] HCA 25; (2006) 228 CLR 357
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- CMB v Attorney General for New South Wales [2015] HCA 9
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
- Everett v The Queen [1994] HCA 49
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- GN v R [2012] NSWCCA 96
- MLP v R [2014] NSWCCA 183
- Martin v R [2014] NSWCCA 124
- McLaren v R [2012] NSWCCA 284
- Minehan v R [2010] NSWCCA 140
- Magnuson v R [2013] NSWCCA 50
- Paxton v R [2011] NSWCCA 242
- R v AD [2005] NSWCCA 208