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11
Court of Criminal Appeal 2 June 2016

R v ND

[2016] NSWCCA 103

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE S 66A CRIMES ACT 1900 (NSW)

Citation: R v ND [2016] NSWCCA 103
Court: NSW Court of Criminal Appeal
Date: 2 June 2016
Judges: Payne JA, Price J, Garling J

Background

The respondent, a man in his late twenties at the time of the offending, was convicted by a jury of sexual intercourse with a child under the age of 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). The victim was his niece, aged five years and ten months, who had been left in his care when her mother briefly left his home. The offending involved digital penetration and lasted only a few minutes, ceasing when the respondent heard the victim's mother returning.

The District Court sentenced the respondent to 2 years and 6 months imprisonment with a non-parole period of 1 year and 8 months. The sentencing judge characterised the offence as falling "towards the lower end of the range of objective seriousness," citing factors such as its isolated and opportunistic nature, short duration, and the absence of threats or significant force.

The Director of Public Prosecutions filed a Crown appeal, contending the sentence was manifestly inadequate. The maximum penalty for the offence was 25 years imprisonment, with a standard non-parole period of 15 years.

  • Whether the sentencing judge correctly assessed the objective seriousness of the offending under s 66A of the Crimes Act 1900
  • Whether the sentencing judge properly treated the victim's age and vulnerability as an aggravating factor
  • Whether the abuse of a position of trust was correctly identified and weighed as an aggravating factor
  • Whether the sentencing judge's assessment of the respondent's prospects of re-offending was open on the evidence
  • Whether the resulting sentence was manifestly inadequate, and if so, what sentence should be imposed on re-sentencing
  • The appropriate roles of general deterrence, specific deterrence, and denunciation in sentencing for this category of offence

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in characterising the offence as falling at the lower end of the range of objective seriousness. While the Court accepted that the offence fell below the mid-range, it was not at the low or lower end. Two features in particular required greater weight: the victim's age of approximately five years and ten months, well below the statutory ceiling of ten years, which made her especially vulnerable; and the respondent's significant breach of trust as the victim's uncle, who had been left responsible for her care.

The Court confirmed that the victim's age and vulnerability, and the abuse of a position of trust, are both statutory aggravating factors under the Crimes (Sentencing Procedure) Act 1999. These features could not be treated as neutral or minor in the objective assessment of the offending. The Court also noted that the offending persisted despite causing the victim pain, and only stopped when the respondent heard others approaching.

On the question of re-offending, the Court agreed with the sentencing judge that the respondent was unlikely to re-offend and had good prospects of rehabilitation. The Court also accepted, contrary to the Crown's submissions on this point, that a finding of special circumstances was available, given the respondent's role as full-time carer for his wife (who had a significant back injury) and their young child. However, that finding was applied only to a modest adjustment of the statutory ratio.

The Court upheld the Crown appeal, quashed the original sentence, and re-sentenced the respondent. The re-sentencing reflected the need for denunciation and general deterrence to receive particular weight given the circumstances of the offending.

Orders Made

  • Appeal upheld
  • Sentence imposed by the District Court on 6 November 2015 quashed
  • Respondent re-sentenced for the s 66A offence to a non-parole period of 4 years commencing 6 November 2015 and expiring 5 November 2019, with a balance of term of 2 years expiring 5 November 2021
  • The respondent is not eligible for release before the expiry of the non-parole period

Key Takeaways

  • The Court of Criminal Appeal confirmed that the age of a child victim well below the statutory threshold, and the offender's abuse of a position of trust, are significant aggravating factors that must be given proper weight when assessing objective seriousness for offences under s 66A of the Crimes Act 1900.
  • Characterising a child sexual assault offence as falling at the "lower end" of objective seriousness requires a careful, evidence-based assessment; the presence of multiple statutory aggravating factors will ordinarily preclude that characterisation even where other features (such as short duration or absence of threats) are present.
  • Under s 66A, general deterrence and denunciation carry particular weight at sentencing, especially where the victim was very young and the offender held a position of trust.
  • A finding of special circumstances remains available where a respondent is a primary carer for a dependent spouse and young child, but such a finding will only modestly alter the statutory ratio between the non-parole period and the total sentence.
  • In dismissing the possibility of exercising the residual discretion to decline relief, the Court re-sentenced the respondent to 6 years imprisonment, more than doubling the original term, reflecting the gravity with which the identified sentencing errors were viewed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 21A(2)(k), 21A(2)(l), 28

Cases:
- Corby v R [2010] NSWCCA 146
- Dousha v R [2008] NSWCCA 263
- EG v R [2015] NSWCCA 21
- Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295
- MLP v R [2006] NSWCCA 271
- PGM v R [2008] NSWCCA 172
- R v Simpson [2001] NSWCCA 534
- R v Stoupe [2015] NSWCCA 175
- SW v R [2013] NSWCCA 255