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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
Date: 15 July 2016
Judge(s): Ward JA, Davies J, RS Hulme AJ

Background

The applicant pleaded guilty in the Campbelltown District Court to six counts of aggravated sexual intercourse without consent against his stepdaughter, and asked that six further offences be taken into account on Form 1 documents. The offending occurred between 2000 and mid-2005, when the victim was aged 12 to 17. It included repeated acts of penile-vaginal and penile-anal intercourse, oral penetration, and digital penetration, all committed in the family home. One assault resulted in the victim's pregnancy and a subsequent termination.

The applicant was arrested in 2003 after the victim's mother discovered him mid-offence, but charges did not proceed because the victim was pressured not to make a statement. The applicant returned to the family home and continued offending. He was sentenced in May 2014 to an aggregate term of 14 years, with a non-parole period of 10 years.

The applicant sought leave to appeal out of time, contending the sentence was manifestly excessive and relying on a series of grounds directed at alleged factual and legal errors by the sentencing judge.

Legal Issues

  • Whether an extension of time for filing the appeal should be granted
  • Whether the sentencing judge erred in treating the family home as an aggravating factor
  • Whether the sentencing judge erred in failing to give mitigating weight to the applicant's prior good character
  • Whether the sentencing judge made findings about the victim's vulnerability unsupported by evidence
  • Whether the discount for the guilty plea was properly quantified
  • Whether specific deterrence was properly taken into account
  • Whether the aggregate sentence was manifestly excessive or, conversely, manifestly inadequate

Decision

Extension of Time: The Court granted an extension of time despite a largely unexplained delay of approximately eight months between May 2015 and the filing of the notice of appeal in January 2016. The prospect of success on appeal was relevant to the interests of justice, and the Crown identified no specific prejudice from the delay (at [40]-[41]).

Ground 9: Offending in the Family Home as an Aggravating Factor: The sentencing judge erred in finding that the applicant's use of the family home was an aggravating circumstance. Under the line of authority beginning with R v Comert and affirmed in Ingham v R, the fact that an offender is lawfully present on the premises means that offending in the victim's home is not an aggravating factor (at [49]-[50]). The sentencing judge's attempt to distinguish those cases was not available on the facts. Davies J and Ward JA both noted, however, that the correctness of this principle warrants reconsideration by a bench of five judges, and both expressed reservations about its restrictiveness (at [47]-[48]). The error enlivened the Court's obligation to resentence afresh (at [51]).

Ground 11: Prior Good Character: The sentencing judge erred in failing to give any mitigating weight to the applicant's good character. The Court distinguished Ryan v The Queen, where offending extended over 20 years. Here, offending spanned five years and the first charged offence was the first occasion the applicant offended against the victim. His prior good character warranted at least some small mitigating weight (at [57]-[58]).

Grounds 5 and 7: Findings About the Victim's Vulnerability: The majority (Ward JA and Davies J) held that findings describing the victim as "battling" with puberty and experiencing a traumatic teenage life were open on the agreed facts and the unchallenged victim impact statement (at [3]). RS Hulme AJ disagreed, finding those particular descriptions went beyond what the evidence supported and upheld grounds 5 and 7 (at [78]). All three judges agreed, however, that even if those grounds were made out, they did not demonstrate that the sentence was manifestly excessive (at [4], [79]).

Plea Discount and Specific Deterrence: The sentencing judge properly quantified the guilty plea discount at 12 percent, and no separate quantified allowance for remorse was required (at [60]-[62]). The applicant's continued offending after his 2003 arrest meant specific deterrence remained a significant sentencing consideration, notwithstanding his stated intentions to seek counselling and his assessed low recidivism risk (at [65]-[66]).

Re-exercise of Sentencing Discretion: Despite identifying two errors, the Court declined to impose a lesser sentence. The aggregate term of 14 years with a non-parole period of 10 years was, in the Court's unanimous view, not excessive. RS Hulme AJ described it as manifestly inadequate, observing that no rational explanation existed for arriving at that aggregate from the indicative sentences, none of which was itself excessive (at [80]-[82]). The applicant's prior good character, reduced to very little weight by persistent offending over five years, provided no basis for reduction (at [73]-[74]).

Orders Made

  • Extension of time for the application for leave to appeal granted to 21 January 2016
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Two errors were established at sentence, including treating the family home as an aggravating factor and failing to give any mitigating weight to prior good character, but neither individually nor cumulatively warranted a lesser sentence given the severity of the offending (at [74]-[75]).

  • The Court of Criminal Appeal confirmed that, under current authority, an offender who is lawfully on premises cannot rely on the victim being assaulted in their own home as an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), but Ward JA and Davies J both expressed doubt about whether that principle is too restrictive and indicated it should be revisited by a five-judge bench (at [47]-[48]).

  • Prior good character may retain some mitigating weight in sexual offence cases even where the offending is persistent, but its value diminishes significantly with the duration and persistence of the offending; the Court distinguished Ryan v The Queen on the basis that the offending there spanned 20 years (at [57]-[58]).

  • Aggregate sentencing does not permit a sentencing court to impose a total sentence that fails to reflect the cumulative criminality of multiple serious offences; the Court restated the principle from R v Harris that the totality principle permits reduction from a simple aggregation but will rarely if ever justify wholly concurrent sentences for a series of serious separate offences (at [82]-[83]).

  • Statistical comparisons with other sentences for similar offences provide no guidance about the propriety of an aggregate sentence; the appropriate reference points remain the maximum penalty and, where applicable, the standard non-parole period (at [69]-[70]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

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
- 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
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- Tweedie v R [2015] NSWCCA 71