AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 28 July 2016

R v Scavera

[2016] NSWCCA 145

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE CRIMES ACT S 66M(2) CRIMES ACT S 66A(2)

Citation: R v Scavera [2016] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 28 July 2016
Judge(s): Simpson JA, Garling J (primary judgment), Wilson J

Background

The respondent pleaded guilty in the Local Court to four offences involving the sexual abuse of a six-year-old boy with autism spectrum disorder, as well as possession of child abuse material. The offences occurred in December 2013, when the respondent was babysitting the child and committed three separate sexual acts against him within a period of between 30 minutes and one hour. He recorded each act on his iPad.

When police later arrested the respondent on unrelated matters and searched his devices and home, they found the recordings and a substantial collection of child abuse material across multiple electronic devices. The respondent participated in a police interview and made full admissions. He had a prior conviction for indecent assault on a child under 10, for which he had received probation.

The District Court sentenced the respondent to an effective total term of six years and six months, with a total non-parole period of four years and two months. The Crown appealed on the ground that the sentences were manifestly inadequate, and later added four specific grounds of appeal.

  • Whether the sentencing Judge correctly assessed the objective seriousness of the aggravated indecent assault offence under s 61M(2) of the Crimes Act 1900
  • Whether the sentences imposed for the two aggravated sexual intercourse offences under s 66A(2) adequately reflected the sentencing Judge's own findings on objective seriousness
  • Whether the sentencing Judge erred in his assessment of the respondent's prospects of rehabilitation and likelihood of re-offending
  • Whether the sentencing Judge erred in failing to partially accumulate the sentences

Decision

The Court of Criminal Appeal upheld the Crown appeal on multiple grounds. Garling J, with Simpson JA and Wilson J agreeing, found that the sentencing Judge had made a number of errors that, individually and collectively, produced sentences that were manifestly inadequate.

On objective seriousness, the Court found the Judge had underassessed the gravity of the aggravated indecent assault offence. The two aggravated sexual intercourse offences had been rated by the sentencing Judge as just short of the mid-range of objective seriousness, yet the sentences imposed failed to reflect that assessment.

The Court also found error in the sentencing Judge's treatment of rehabilitation. The respondent's prior conviction for a similar offence against a child, combined with the serious nature of the present offending, did not support the weight given to rehabilitation as a mitigating consideration.

On accumulation, the Court found the sentencing Judge had not given sufficient attention to the fact that the offences, while arising from a single occasion, involved three distinct sexual acts against a vulnerable child. Further accumulation of the sentences was warranted. Taking into account the respondent's guilty plea (which attracted a 25 per cent discount), the Court resentenced him to an effective total non-parole period of seven years and a total term of ten years across all offences.

Orders Made

  • Appeal upheld
  • Sentences imposed in the District Court on 26 November 2015 quashed, except for the sentence for possession of child abuse material (s 91H(2))
  • In substitution, the following sentences imposed:
  • Aggravated indecent assault (s 61M(2)): non-parole period of 2 years and 9 months from 18 June 2015, balance of term 1 year
  • Aggravated sexual intercourse by digital penetration (s 66A(2)): non-parole period of 4 years from 18 June 2016, balance of term 1 year and 4 months
  • Aggravated sexual intercourse by fellatio (s 66A(2)): non-parole period of 4 years and 6 months from 18 June 2017, balance of term 3 years
  • Earliest parole release date: 17 December 2021

Key Takeaways

  • A sentencing Judge who rates the objective seriousness of an offence at a particular level must impose a sentence that is consistent with that rating; a material gap between the stated assessment and the sentence imposed constitutes an identifiable error.
  • Where an offender has a prior conviction for a similar offence against a child, the weight ordinarily afforded to rehabilitation must be moderated, particularly where the present offending is serious and involves a vulnerable victim.
  • Separate and distinct sexual acts committed against a single victim within a single occasion may still warrant accumulation of sentences, especially where each act was charged as a discrete offence.
  • The Court of Criminal Appeal confirmed that a finding of special circumstances (which permits alteration of the standard non-parole to balance-of-term ratio under the Crimes (Sentencing Procedure) Act 1999) remained appropriate on the facts, though the adjustment warranted was described as modest.
  • Carrying out offending while in a position of trust (babysitting), targeting a child with a diagnosed vulnerability, and recording the acts were all treated as significant aggravating factors in the resentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61M(2), 66A(2), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 22
- Criminal Appeal Act 1912 (NSW): s 5D(1)

Cases
- EG v R [2015] NSWCCA 21
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v King [2009] NSWCCA 117
- R v ND [2016] NSWCCA 103
- R v PFC [2011] NSWCCA 117
- R v Previtera (1997) 94 A Crim R 76