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Court of Criminal Appeal 15 July 2016

Erazo v R

[2016] NSWCCA 139

Sexual offences
CRIMINAL LAW SENTENCE DAUGHTER VICTIM AGED 12 TO 17 YEARS INTERCOURSE RESULTING IN PREGNANCY CONTINUATION OF OFFENDING

Citation: Erazo v R [2016] NSWCCA 139
Court: Court of Criminal Appeal, New South Wales
Date: 15 July 2016
Judge(s): Ward JA; Davies J; RS Hulme AJ

Background

The appellant pleaded guilty in the Campbelltown District Court to six counts of aggravated sexual intercourse without consent. He asked for six further offences to be taken into account on Form 1 documents. The offending was committed against his stepdaughter over a period spanning her ages of approximately 12 to 17 years, and included an incident that resulted in pregnancy.

On 9 May 2014, the sentencing judge imposed an aggregate sentence with a non-parole period of ten years commencing 4 March 2014, and an additional term of four years expiring 3 March 2028. The indicative individual sentences ranged from six to nine years minimum terms, running cumulatively at six-month intervals across the six principal counts.

The appellant sought leave to appeal out of time, arguing that a number of factual findings made by the sentencing judge were unsupported by evidence and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge made factual findings that were not supported by the evidence, including findings about the victim's vulnerability, her traumatic teenage years, and the humiliation of falling pregnant at the same time as her mother
  • Whether the sentencing judge wrongly treated the use of the family home as an aggravating factor
  • Whether the sentencing judge failed to give adequate weight to the appellant's good character
  • Whether the sentencing judge failed to specify the discount applied for the guilty plea and remorse
  • Whether the sentencing judge impermissibly took into account the pregnancy termination as an uncharged offence
  • Whether the aggregate sentence was manifestly excessive
  • Whether, on resentencing, a lesser sentence than that originally imposed was warranted

Decision

The Court of Criminal Appeal found that certain errors had been established. The sentencing judge's finding that the family home had been used as "a means of committing the offences" was an aggravating factor was held to be in error under the current state of the law. The Court acknowledged, however, that the existing line of authority on this point has attracted criticism from members of the Court, and the question of whether offending by family members in the victim's own home should constitute an aggravating circumstance was identified as warranting reconsideration.

On the contested factual findings, Davies J (with whom Ward JA agreed) held that the findings concerning the victim's vulnerability, her difficulties adjusting to a new country and language, and her traumatic teenage years were open on the evidence, including the Agreed Facts and the Victim Impact Statement. RS Hulme AJ took a different view on two of those grounds, concluding they should be upheld, but all members of the Court agreed that even if those findings were erroneous, they did not render the sentence manifestly excessive.

The Court also found the sentencing judge had failed to make an express finding as to the discount applied for the guilty plea. This was a further identified error. Despite these errors, the Court conducted a resentencing exercise and unanimously concluded that the sentence originally imposed was, if anything, manifestly inadequate rather than manifestly excessive.

All members of the Court agreed that no lesser sentence than the one imposed at first instance was warranted. The Court endorsed the principle that a series of serious discrete offences, each attracting appropriate individual sentences, should generally result in meaningfully cumulative sentences, and that the totality principle does not justify reducing a sentence to the point where there is little practical distinction between an offender who commits one offence and one who commits many.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, under the current state of NSW law, an offender's lawfulness in being on premises where offending occurs means that commission of offences in the victim's home will not ordinarily constitute a statutory aggravating factor, even where the victim is a child abused by a family member.
  • Significant judicial doubt exists about whether that principle is correctly stated. Ward JA and RS Hulme AJ (in prior decisions referred to with approval) identified force in arguments that offending against a child in her own home by a family member should be treated as an aggravating circumstance, and the Court signalled this line of authority may warrant reconsideration.
  • Factual findings made by a sentencing judge will not be disturbed on appeal where they are reasonably open on the agreed facts and victim impact material, even where the language used is characterised as emotive.
  • In applying the totality principle, a sentencing court must review aggregate sentences to ensure they are just and appropriate overall, but the principle does not justify making sentences wholly or largely concurrent where a series of serious separate offences are involved.
  • Establishing errors in individual factual findings or in the identification of aggravating factors does not automatically lead to a lesser sentence on appeal if the overall sentence falls within, or below, the available range having regard to the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A(2)

Cases:
- Aktar v R [2015] NSWCCA 123
- AG v R [2016] NSWCCA 102
- DC v State of New South Wales [2010] NSWCA 15
- Ingham v R [2011] NSWCCA 88
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Knight v R [2015] NSWCCA 222
- Melbom v R [2013] NSWCCA 210
- Mill v R (1988) 166 CLR 59
- R v Comert [2004] NSWCCA 125
- R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469
- R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
- R v MAK and MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v MJB [2014] NSWCCA 195
- R v Tuala [2015] NSWCCA 8
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Wheeler [2000] NSWCCA 34
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- Tweedie v R [2015] NSWCCA 71