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42
Court of Criminal Appeal 6 July 2016

R v Nelson

[2016] NSWCCA 130

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE BONDS AND SUSPENDED SENTENCES MANIFEST INADEQUACY YOUNG OFFENDER

Citation: R v Nelson [2016] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 6 July 2016
Judges: Basten JA; Rothman J; Fagan J

Background

The respondent, a young man aged 18 to 19 at the time of the offending, was convicted in the District Court of multiple offences of sexual intercourse with three girls under 16 years of age, contrary to s 66C of the Crimes Act 1900 (NSW). One victim was 13 years old; the other two were 14. The most serious offence carried a maximum penalty of 16 years imprisonment. The respondent had lived in the same household as the youngest victim, JM, and their sexual relationship continued for several months, resulting in JM giving birth to his child before her fifteenth birthday.

The District Court imposed no custodial sentence. The respondent received suspended sentences and good behaviour bonds across all seven counts. The sentencing judge placed significant weight on the respondent's youth, a background of physical abuse in childhood, and diagnosed cognitive disabilities and mental health difficulties.

The Director of Public Prosecutions appealed under s 5D(1) of the Criminal Appeal Act 1912 (NSW), contending that the sentences were manifestly inadequate and that the sentencing judge made identifiable errors in the assessment of objective seriousness.

  • Whether the sentencing judge erred in treating the sexual activity as effectively "consensual" and in finding no substantial psychological harm to the victims, thereby understating objective seriousness.
  • Whether the sentencing judge erred in the assessment of the age disparity between the offender and the victims as "not great."
  • Whether the sentencing judge gave appropriate weight to the offender's manipulation of the victims.
  • Whether sentences in respect of offences against separate complainants should have been accumulated (that is, made to run consecutively rather than concurrently).
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline to resentence even if error were established.

Decision

Errors in the District Court's approach

Basten JA (writing the lead judgment) identified two principal errors by the sentencing judge. First, the judge characterised the sexual intercourse as "consensual" and drew a distinction between consensual and non-consensual offending as relevant to objective seriousness. The Court held this was legally and factually wrong: children under 16 cannot consent for the purposes of these offences, and the courts are entitled to act on the basis that child sexual abuse causes substantial psychological harm even in the absence of specific evidence to that effect. The line of authority from DBW v R [2007] NSWCCA 236 onwards firmly established this principle.

Second, the judge described the age gap between the offender and the victims as "not great." On the facts, the offender was approximately four to five years older than the victims. The Court found this characterisation was itself an error, noting that a five-year age gap between a young man and a 13-year-old girl is not negligible, particularly where the older party is aware of the victim's age and exercises emotional control, including by managing the victim's communications on social media.

Residual discretion and the outcome

Despite identifying errors in the sentencing judge's reasoning, the three judges each considered whether the Court's residual discretion should be exercised to nonetheless leave the sentences undisturbed. This discretion, long recognised in Crown appeal cases, allows an appellate court to decline to resentence where the original sentences are not so inadequate as to require intervention, having regard to all the circumstances including the double jeopardy of resentencing after appeal.

The judges diverged in emphasis. Basten JA considered the objective seriousness of the offending, particularly the count involving JM, called for some custodial term, and would have resentenced. Rothman J and Fagan J, while accepting errors existed, placed greater weight on the respondent's subjective circumstances (his youth, cognitive impairment, mental health, and his own history of abuse) and on the fact that the respondent had already spent approximately 7.5 months in custody after breaching bail. Both Rothman J and Fagan J concluded the sentences, though lenient, did not require correction on appeal, having regard to those exceptional subjective features and the principle that residual discretion exists precisely for borderline cases. The majority therefore dismissed the appeal.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A sentencing judge commits legal error by treating the apparent "consent" of a child victim as a mitigating factor in the assessment of objective seriousness for offences under s 66C of the Crimes Act 1900 (NSW): children under 16 cannot legally consent, and that characterisation misapplies the statutory scheme.
  • Courts are entitled to proceed on the basis that child sexual offending causes substantial psychological harm without requiring specific evidence to that effect, following the line of authority from DBW v R [2007] NSWCCA 236 onwards.
  • Where a sentencing judge identifies errors in the original sentence but strong subjective circumstances exist (youth, cognitive disability, mental health difficulties, and personal history of abuse), the Court of Criminal Appeal may exercise its residual discretion to leave sentences undisturbed on a Crown appeal.
  • The residual discretion in Crown appeals is not merely technical: even where appellate errors are established, the Court may decline to intervene where the overall outcome falls within an acceptable range when all subjective matters are properly weighed.
  • In dismissing the appeal, the majority emphasised that the respondent's approximately 7.5 months of pre-sentence custody, combined with his exceptional personal circumstances, made resentencing inappropriate despite the identified errors below.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 12, 32, 33, 50; Pt 4
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- BP v R [2010] NSWCCA 159
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- CMB v The Queen [2015] HCA 9; 89 ALJR 407
- DBW v R [2007] NSWCCA 236
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- MJ v R, CPD v R [2010] NSWCCA 52
- Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
- R v Engert (1995) 84 A Crim R 67
- R v G [2009] 1 AC 92
- R v Gavel [2014] NSWCCA 56; 239 A Crim R 469
- R v King [2009] NSWCCA 117
- R v LNT [2005] NSWCCA 307
- R v Newman, R v Simpson [2004] NSWCCA 102