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11
Court of Criminal Appeal 28 October 2016

AK v R

[2016] NSWCCA 238

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE ERROR DEMONSTRATED NO ERROR DEMONSTRATED 252 CLR 601 APPLICANT’S LIMITED INSIGHT AND REMORSE

Citation: AK v R [2016] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 28 October 2016
Judges: Beazley P, Johnson J, Harrison J

Background

The applicant, referred to by the pseudonym AK, pleaded guilty in the Newcastle District Court in May 2013 to three child sexual offences involving two female victims aged between nine and eleven years. The offences included two counts of aggravated indecent assault under s.61M(2) of the Crimes Act 1900 and one count of aggravated sexual intercourse with a child under authority under s.66C(2) of the same Act. A further s.66C(2) offence was taken into account on a Form 1 at the time of sentencing.

The applicant had moved in with the mother of one of the victims and committed offences against her daughter over a period from 2010 to 2011, with the agreed facts noting earlier inappropriate sexual touching from 2009. The offences were serious: Count 3 involved penile vaginal intercourse with a ten-year-old girl, with a further act of penile anal intercourse taken into account on the Form 1.

The sentencing judge imposed an overall effective sentence comprising a non-parole period of eight years from 6 May 2013 and a balance of term expiring on 19 August 2024. The applicant sought an extension of time to appeal, which the Court granted, and then pursued leave to appeal against the sentences on two grounds.

  • Whether the sentencing judge erred in the manner in which he took into account the applicant's uncharged sexual misconduct when determining sentence.
  • Whether the sentencing judge erred in finding that the applicant did not accept that his offending "is of a class that cannot and should not ever be contemplated or countenanced," specifically in his approach to the applicant's remorse and assessed risk of reoffending.

Decision

On Ground 1, the Court of Criminal Appeal found that the sentencing judge had erred in the manner in which he took into account the uncharged sexual misconduct. This finding was sufficient to engage the Court's independent sentencing discretion under the principles in Kentwell v The Queen (2014) 252 CLR 601. The Court therefore proceeded to resentence the applicant itself rather than simply assess whether the original sentence was within range.

On Ground 2, the Court found no error in the sentencing judge's approach to remorse and risk of reoffending. The Court accepted that the applicant demonstrated only limited insight and remorse, and that this was a legitimate factor in the sentencing calculus. The finding in Ground 2 did not provide independent grounds for intervention.

Exercising its independent sentencing discretion, the Court assessed the offences as serious examples of their type. It took into account the significant harm caused to the victim Helen, supported by expert evidence from Professor Hayes, the youth and vulnerability of the victims, the applicant's criminal history (which contained no prior sexual offences but other matters limiting the scope for leniency), and a 10% discount for guilty pleas. The Court also noted the absence of a standard non-parole period for s.66C(2) offences at the relevant time, observing that the 2015 legislative amendment introducing such a period had no application to this case.

Having conducted the independent sentencing exercise, the Court concluded that no lesser sentence was warranted in law for the purposes of s.6(3) of the Criminal Appeal Act 1912. The appeal was accordingly dismissed.

Orders Made

  • Extension of time granted to 8 October 2015 to make application for leave to appeal against sentence.
  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Error in the treatment of uncharged misconduct at sentencing can enliven the Court of Criminal Appeal's independent sentencing discretion under Kentwell v The Queen, even where that error does not ultimately produce a lesser sentence on resentence.
  • A finding of error on one ground does not guarantee a reduced sentence: the Court conducts a fresh sentencing exercise and may arrive at the same result where the original sentence remains appropriate on all the facts.
  • Under s.66C(2) of the Crimes Act 1900, no standard non-parole period applied to offences committed before 29 June 2015, and the standard non-parole period introduced by the Crimes Legislation Amendment (Child Sex Offences) Act 2015 cannot influence sentencing for earlier offending.
  • In dismissing the appeal, the Court emphasised that the harm actually suffered by child victims is a significant sentencing consideration under s.3A(g) of the Crimes (Sentencing Procedure) Act 1999, particularly where supported by expert evidence.
  • Limited insight and remorse, properly assessed on the evidence, are legitimate factors supporting a heavier sentence and do not require further justification beyond the sentencing judge's findings on those matters.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss.61M(2), 66C(2), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s.3A(g), s.6(3)
- Criminal Appeal Act 1912 (NSW), s.6(3)
- Children (Criminal Proceedings) Act 1987 (NSW), s.15A
- Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)

Cases:
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- McGrath v R [2010] NSWCCA 48; 199 A Crim R 527
- R v Gavel [2014] NSWCCA 56; 239 A Crim R 469
- Clarke v R [2009] NSWCCA 49
- NW v R [2011] NSWCCA 178
- BIP v R [2011] NSWCCA 224
- House v The King [1936] HCA 40; 55 CLR 499
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Palu [2002] NSWCCA 381; 134 A Crim R 174
- R v JCW [2000] NSWCCA 209; 112 A Crim R 466