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9
Court of Criminal Appeal 30 November 2016

GS v R

[2016] NSWCCA 266

Sexual offences
CRIMINAL LAW SENTENCING APPEAL SEVERITY OF SENTENCE CRIMES ACT 1900 (NSW) S 61M(2) WHERE VICTIMS AGED 6 AND 9 YEARS

Citation: GS v R [2016] NSWCCA 266
Court: Court of Criminal Appeal
Date: 30 November 2016
Judge(s): Gleeson JA at [1]; Fagan J at [96]; N Adams J at [103]

Background

The applicant pleaded guilty in the District Court in December 2014 to three counts of indecent assault on a child under 10 years of age, committed in 1996 against two girls aged nine and six. He had been an acquaintance of the victims' families and had supervised the children during horse riding activities. He also asked for two further indecent assault offences against the first victim to be taken into account on a Form 1.

At the time of sentencing for the 1996 offences, the applicant was already serving a sentence imposed in 2011 for an unrelated aggravated sexual assault committed in 2004 against an 11-year-old girl. The 2011 sentence was six years with a three-year non-parole period. The 2014 sentences were made wholly cumulative on the non-parole period of the 2011 sentence, producing a total effective sentence of eight years with an effective non-parole period of five years.

The applicant, aged 67 at sentencing, suffered from serious medical conditions including chronic kidney disease requiring dialysis, cerebral aspergillosis, diabetes, and a history of strokes and heart disease. His life expectancy at the time of the 2011 sentencing had been estimated at five to seven years, though no updated medical opinion was placed before the sentencing judge in 2014. He sought leave to appeal out of time, arguing the sentences were manifestly excessive and that the totality principle had not been properly applied.

Legal Issues

  • Whether the sentencing judge failed to properly apply the principle of totality when structuring sentences that were wholly cumulative on the non-parole period of the existing 2011 sentence
  • Whether the individual sentences and the overall sentencing structure were manifestly excessive, having regard to the applicant's advanced age, serious ill-health and the extent of accumulation
  • Whether the finding of special circumstances was adequately reflected in the sentences imposed (this ground was abandoned at the hearing)

Decision

Ground 1: Failure to apply the totality principle

The Court of Criminal Appeal found no error in the sentencing judge's application of the totality principle. The judge had expressly recognised that totality arose both from the multiplicity of charges and from the existence of the 2011 sentence, and had accepted that some accumulation was necessary to reflect the overall criminality while avoiding a crushing outcome (at [52]-[53]). The sentencing judge correctly treated the 1996 and 2004 offences as two discrete acts of criminality against different victims separated by eight years (at [53]).

The court rejected the argument that her Honour was required to expressly refer to specific formulations within the totality principle, such as the obligation to take a "last look" at the overall sentence or the proposition that sentence severity increases exponentially with length. It was sufficient that those considerations were implicit in the remarks on sentence (at [54]-[56]). No patent error in reasoning was identified (at [61]).

Ground 2: Special circumstances

This ground was abandoned at the hearing and required no determination. The court noted that applying the statutory non-parole period ratio across sentences imposed at different times had no warrant under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (at [40]).

Ground 3: Manifest excess in individual sentences and overall structure

The court found the individual sentences were within the available range. The offending was properly characterised as particularly serious, involving the touching of the genitalia of girls aged nine and six, significant breaches of trust, psychological and physical coercion, and the targeting of a second, even younger victim after the first had ceased attending the applicant's home (at [89], [93]). The applicant's age and ill-health moderated but did not displace the need for sentences that reflected the objective gravity of multiple sexual offences against different young victims (at [92]).

The court also found the sentencing structure was not manifestly excessive. The judge had allowed considerable concurrency between the 2014 sentences, and the decision to accumulate those sentences on the non-parole period of the 2011 sentence was within discretion given the entirely discrete nature of the two bodies of offending (at [82], [98]). Fagan J noted that five years without parole for multiple indecent assaults against victims of such young ages could not be regarded as manifestly excessive (at [97]). N Adams J added that compassionate release under section 160 of the Crimes (Administration of Sentences) Act 1999 remained available through the Parole Authority should the applicant's health deteriorate significantly, and that this was not a matter for appellate intervention in an otherwise appropriate sentence (at [107]-[109]).

Orders Made

  • Extension of time for leave to appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge applying the totality principle is not required to expressly articulate each specific formulation of that principle, such as the "last look" obligation or the exponential nature of sentence severity, provided those considerations are implicit in the overall sentencing approach (at [54]-[56]).

  • Where a new body of offending is entirely discrete from the offending the subject of an existing sentence, involving different victims and a substantial gap in time, it is within a sentencing judge's discretion to accumulate the new sentences on the non-parole period of the existing sentence rather than allow a high degree of concurrency (at [81], [98]).

  • Advanced age and serious ill-health are matters a sentencing court must take into account, but they do not justify imposing a sentence that fails to reflect the objective gravity of multiple sexual offences against young children, particularly where significant breaches of trust are involved (at [92], [99]-[100]).

  • In dismissing this appeal, the Court of Criminal Appeal confirmed that the possibility of a custodial sentence extending beyond an elderly or ill offender's life expectancy does not of itself render the sentence manifestly excessive, especially in cases of serious historical child sexual offending where the community's denunciation of such conduct must be reflected in the penalty (at [77], [101]-[102]).

  • Release on compassionate grounds under section 160 of the Crimes (Administration of Sentences) Act 1999 is an administrative mechanism available through the Parole Authority; it is not a basis for appellate courts to intervene in an otherwise appropriate sentence on account of an offender's ill-health (at [107]-[109]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 61E, 61J, 61M
- Crimes (Administration of Sentences) Act 1999 (NSW) s 160
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 21A, 44, 45

Cases
- Cahyadi v The Queen (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Collier v R [2012] NSWCCA 213
- Convery v R [2014] NSWCCA 93
- Dinsdale v The Queen 202 CLR 321; [2000] HCA 54
- Gulyas v State of Western Australia (2007) 178 A Crim R 539; [2007] WASCA 263
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- LG v R [2012] NSWCCA 249
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mill v the Queen (1988) 166 CLR 59; [1998] HCA 70
- Nelson v R [2016] NSWCCA 130
- Pearce v The Queen (1988) 194 CLR 610; [1998] HCA 57
- R v Crowley and Garner (1991) 55 A Crim R 201
- R v CMB [2014] NSWCCA 5
- R v Gallagher (Court of Criminal Appeal (NSW), 29 November 1995, unrep)
- R v Gavel [2014] NSWCCA 56
- R v Gommeson [2014] NSWCCA 159
- R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540
- R v Holyoak (1995) 82 A Crim R 502
- R v Katon [2008] NSWCCA 228
- R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- R v MJK (2002) 54 NSWLR 368; [2002] NSWCCA 129
- R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272
- R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115
- R v Wicks [2005] NSWCCA 409
- TDP v R; R v TDP [2013] NSWCCA 303
- White v R [2016] NSWCCA 190
- Williams v R [2016] NSWCCA 68