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4
Court of Criminal Appeal 2 June 2016

AG v R

[2016] NSWCCA 102

Sexual offences
CRIMINAL LAW SENTENCING VICTIM WAS APPLICANT’S ELDEST DAUGHTER ELLIS DISCOUNT REMORSE UNDERMINED BY VICTIM BLAMING

Citation: AG v R [2016] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 2 June 2016
Judges: Basten JA, McCallum J, Davies J

Background

The applicant pleaded guilty in the District Court at Campbelltown to one count of aggravated indecent assault and three counts of aggravated sexual intercourse without consent. The victim was his eldest daughter, who was aged between 11 and 13 at the time of the offending. The sentencing judge imposed an aggregate sentence with a non-parole period of four years and an additional term of two years.

The applicant sought leave to appeal to the Court of Criminal Appeal, contending that the sentence was affected by legal error and was manifestly excessive. Several distinct grounds were raised, touching on how aggravating factors were applied, how victim impact statements were used, and whether the adjustment for special circumstances was adequate.

  • Whether the sentencing judge erred by taking into account, as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that the victim was under the applicant's authority, when that circumstance had not been charged as the element of aggravation for the s 61J offences
  • Whether the principle in The Queen v De Simoni (1981) 147 CLR 383 prevented reliance on that uncharged circumstance of aggravation
  • Whether the sentencing judge made sufficient adjustment to the non-parole period after finding special circumstances
  • Whether the victim impact statement provided by the victim's mother was used appropriately
  • Whether the sentence was manifestly excessive, including in light of sentencing statistics

Decision

The De Simoni argument. The Court rejected the argument that using the "under authority" circumstance as a sentencing aggravator (when it had not been charged as the aggravating element for the s 61J offences) amounted to punishing the applicant for a more serious offence. Basten JA identified three reasons. First, authority directly on point (Regina v AD [2005] NSWCCA 208) had already resolved the issue adversely to the applicant. Second, De Simoni is engaged only where a sentencing court punishes an offender for a different, more serious offence than the one charged; taking additional aggravating factors into account makes the offending more serious in degree but does not change the nature of the offence charged. Third, s 21A(2) of the Sentencing Procedure Act expressly requires courts to take into account factors such as abuse of a position of trust, subject only to the qualification that the factor is not already an element of the offence charged.

Adjustment for special circumstances. The sentencing judge found special circumstances and reduced what would otherwise have been a 75 per cent non-parole period to approximately 66.7 per cent of the aggregate sentence, producing a non-parole period six months shorter than it would otherwise have been. The applicant argued the reduction was insufficient. The Court acknowledged the comparison in percentage terms could appear modest, but noted that framing it that way was misleading: the balance of term had in fact been increased by six months, representing a 33.3 per cent increase over the statutory minimum balance. The Court declined to intervene in the exercise of this sentencing discretion.

Victim impact statements. The applicant challenged the weight given to the mother's victim impact statement over that of the victim herself. The Court addressed the statutory framework governing victim impact statements and the role each type of statement may properly play. No error was established in how the sentencing judge approached this material.

Objective seriousness and manifest excess. The Court found the sentencing judge's assessment of objective seriousness was open on the facts, which included the applicant's threats to the victim to prevent disclosure. Sentencing statistics were described as a "blunt tool" that offer no guidance when an aggregate sentence is under consideration. Given that three of the four counts carried a maximum of 20 years and a standard non-parole period of ten years each, the Court held it was not possible to characterise the aggregate sentence as unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court may take into account a circumstance of aggravation that was not charged as the aggravating element of the offence, provided it is not already an element of the offence as charged. The De Simoni principle is not breached in such a situation because the offender is not being sentenced for a different or more serious offence.
  • Where one circumstance of aggravation is charged and proved under s 61J of the Crimes Act 1900 (NSW), other circumstances of aggravation may still be considered at sentence. The De Simoni principle prevents punishment for uncharged offences; it does not limit the weight of uncharged aggravating facts within a convicted offence.
  • Comparing the non-parole period as a percentage of the total sentence before and after a special circumstances adjustment can be misleading. The Court of Criminal Appeal confirmed the more accurate measure is the proportional increase to the balance of term.
  • Sentencing statistics are described by the Court as a "blunt tool," and carry no weight when assessing whether an aggregate sentence is manifestly excessive.
  • Remorse that is undermined by victim-blaming, and threats made by an offender to suppress disclosure, are factors properly weighed in the assessment of objective seriousness and subjective circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 26, 30, 44; Pt 3, Div 2

Cases
- The Queen v De Simoni (1981) 147 CLR 383
- Regina v AD [2005] NSWCCA 208
- R v Ellis (1986) 6 NSWLR 603
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- House v The King (1936) 55 CLR 499
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- Knight v R [2015] NSWCCA 222
- Tweedie v R [2015] NSWCCA 71
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- Clarke v R [2009] NSWCCA 49
- Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40
- Mitreski v R [2015] NSWCCA 137
- Mulato v R [2006] NSWCCA 282
- R v Aguirre [2010] NSWCCA 115
- R v Niketic [2002] NSWCCA 425
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R v Slack [2004] NSWCCA 128
- R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346