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Court of Criminal Appeal 8 June 2016

AC v R

[2016] NSWCCA 107

Sexual offences
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE CRIMES ACT 1900 (NSW) S 66EA OFFENCE OFFENDING APPEAL ALLOWED APPEAL DISMISSED

Citation: AC v R [2016] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 8 June 2016
Judges: Bathurst CJ, Schmidt J (principal judgment), Wilson J

Background

The applicant pleaded guilty to persistent sexual abuse of a 12-year-old girl, contrary to s 66EA(1) of the Crimes Act 1900 (NSW). The offending occurred over a period in early 2014 and involved sexual intercourse with the victim on at least three separate occasions. The applicant received a 25% discount for his early plea.

On 6 March 2015, Sweeney DCJ sentenced the applicant to 10 years' imprisonment, commencing 6 February 2014, with a non-parole period of 7 years and 6 months. The applicant sought leave to appeal that sentence on three grounds.

  • Whether the sentencing judge failed to give proper weight to the victim impact statement
  • Whether the sentencing judge failed to take into account the applicant's prospects of rehabilitation and likelihood of re-offending, as required by s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge erred in failing to consider making a finding of special circumstances, which would have permitted a departure from the standard ratio between the non-parole period and the total sentence

Decision

The Court granted leave to appeal but dismissed the appeal on all three grounds. Schmidt J (with Bathurst CJ and Wilson J agreeing) found no error in the sentencing judge's approach to any of the matters raised.

On the victim impact statement, the Court found that the sentencing judge had not used the statement as an aggravating factor, which s 21A(3)(a) of the Crimes (Sentencing Procedure) Act contemplated. The Court noted, somewhat pointedly, that this arguably rendered the sentence lenient rather than excessive, though the Crown had not pressed that argument.

On rehabilitation and re-offending, the Court examined the psychological evidence before the sentencing judge. The reports from the applicant's treating psychologist had been formed on the basis of a history provided by the applicant that raised reliability concerns. The Court found no demonstrated error in how the sentencing judge dealt with this material.

On special circumstances, the Court observed that no such submission had been made at first instance. On appeal, the applicant relied on psychological evidence about severe depression and grief reaction, but the Court found it difficult to accept that the sentencing judge erred in adhering to the statutory ratio, particularly given the absence of any submission below and the problems with the psychological evidence already identified.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A conviction under s 66EA of the Crimes Act 1900 (NSW) requires proof beyond reasonable doubt of at least three separate occasions of sexual offending against a child on separate days; it carries a maximum penalty of 25 years' imprisonment and is treated as more serious than the individual offences comprising it.
  • Where no submission for a finding of special circumstances was advanced at first instance, an appellate court will require demonstration of actual error or a manifestly excessive non-parole period before interfering with the sentencing judge's adherence to the statutory ratio.
  • Psychological evidence based on a history provided by the offender may carry reduced weight where that history is called into question, affecting the conclusions that can be drawn about rehabilitation prospects and re-offending risk.
  • In dismissing the appeal, the Court of Criminal Appeal noted that failing to treat the harm caused to the victim as an aggravating factor (as s 21A(3)(a) contemplates) could make a sentence disproportionately lenient, though this issue was not pursued by the Crown.
  • Under R v Thomson; R v Houlton, even an early guilty plea may not attract a discount where the offence is so serious that no discount is warranted, though in this case a full 25% discount was applied.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66EA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22(1A)

Cases:
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- Langbein v R [2008] NSWCCA 38; (2008) 181 A Crim R 378
- ARS v R [2011] NSWCCA 266
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469
- Shrestha v The Queen [1991] HCA 26; (1991) 173 CLR 48
- TS v R [2007] NSWCCA 194
- Shaw v R [2008] NSWCCA 58