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7
Court of Criminal Appeal 16 December 2016

Gifford v R

[2016] NSWCCA 302

Sexual offences
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Gifford v R [2016] NSWCCA 302
Court: Court of Criminal Appeal, New South Wales
Date: 16 December 2016
Judge(s): Ward JA (principal judgment); Bellew J and Hidden AJ (agreeing)

Background

The applicant, a 35-year-old university student, pleaded guilty in the Local Court at Campbelltown to two charges of using a carriage service to procure a person under 16 for sexual activity, contrary to s 474.26(1) of the Criminal Code Act 1995 (Cth). The offending involved explicit Facebook Messenger communications sent to two girls aged 13 and 14 over approximately three months in late 2014. The applicant offered money for sexual acts, discussed meeting arrangements, and made repeated requests for sexual images. He did not know either victim and never met them in person.

In the District Court, the applicant was sentenced to a term of 5 years and 7 months for the first offence and 5 years and 2 months for the second offence, with a non-parole period of 3 years and 11 months. The maximum penalty for each offence was 15 years' imprisonment. The applicant had a prior criminal record that included a related offence of using a carriage service to menace an adult work colleague and earlier convictions for aggravated robbery and deprivation of liberty.

The applicant sought leave to appeal against sentence in the Court of Criminal Appeal, contending the District Court judge had made several errors in the sentencing process.

  • Whether the sentencing judge erred by rejecting unchallenged evidence from a psychologist (Rev Dr Peter Powell) concerning the applicant's apparent lack of intention to meet the victims
  • Whether the sentencing judge erred in characterising the objective seriousness of the offences
  • Whether the sentencing judge failed to properly assess the applicant's prospects of rehabilitation
  • Whether the sentences imposed were manifestly excessive

Decision

Ground 1: Rejection of the psychologist's evidence. The Court accepted that a sentencing judge is not bound to accept uncontested expert evidence, provided the judge's reasoning does not exceed the proper bounds of judicial notice and is not otherwise legally flawed. The Court found that the sentencing judge's rejection of Dr Powell's conclusion that the applicant lacked any real intention to meet the victims was open on the evidence. In particular, the applicant's own messages to CLT's sister suggested he had initially intended a meeting but changed his mind, and his conduct with MS went so far as to arrange a meeting that she actually attended. The sentencing judge was entitled to find that the applicant's level of intention to meet remained an aggravating feature.

Ground 2: Objective seriousness. The Court upheld the sentencing judge's characterisation of the offences as at the higher end of the range of objective seriousness. The conduct was persistent, systematic, detailed, and targeted children the applicant knew to be under 16. The absence of any actual physical contact did not reduce the gravity of the offending to a lower level of seriousness, particularly given the extent and nature of the communications.

Ground 3: Prospects of rehabilitation. The Court found no error in the sentencing judge's assessment of rehabilitation prospects as "reasonable". The applicant had completed some relevant programs and the sentencing judge acknowledged this, but was not required to treat rehabilitation as a more substantial mitigating factor given the nature and context of the offending, including the prior analogous offence.

Ground 4: Manifest excess. Applying the House v The King principle that appellate intervention requires identification of error in the exercise of sentencing discretion, the Court was not persuaded that the sentences were plainly unreasonable or unjust. The starting point adopted by the sentencing judge was consistent with comparable authority, and the sentences fell within a range of legitimate outcomes having regard to the applicant's subjective factors, including his guilty plea and his personal circumstances.

Orders Made

• Leave to appeal is granted
• The appeal is dismissed

Key Takeaways

  • A sentencing judge is not bound to accept unchallenged expert evidence, provided the rejection is reasoned and within proper judicial bounds. The Court of Criminal Appeal confirmed this principle applies equally to psychological evidence tendered on sentence.
  • Where an offender's own communications indicate a progression towards meeting a child victim, those communications can support a finding of relevant intention despite the meeting never occurring.
  • The absence of actual physical contact with a child victim does not, by itself, place offences under s 474.26(1) of the Criminal Code Act 1995 (Cth) at the lower end of objective seriousness where the conduct is sustained, detailed, and targeted.
  • Appellate review of a sentencing discretion remains confined to the House v The King error-based standard; numerical comparison of sentences with other cases is not a substitute for identifying a specific sentencing error.
  • In dismissing the appeal, the Court reinforced that a prior analogous offence (here, using a carriage service to harass an adult colleague) is a relevant consideration in assessing both objective seriousness and rehabilitation prospects.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code Act 1995 (Cth), ss 5.2, 5.6(1), 474.17(1), 474.26(1), 474.28(8)
- Criminal Code 1899 (Qld), s 218A

Cases
- House v The King (1936) 55 CLR 499 (standard for appellate review of sentencing discretion)
- The Queen v Olbrich (1999) 199 CLR 270 (sentencing judge's responsibility in fact-finding)
- Markarian v The Queen (2005) 228 CLR 357
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Dinsdale v The Queen (2000) 202 CLR 321
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Director of Public Prosecutions (Cth) v Hizhnikov [2008] VSCA 269
- R v Gajjar [2008] VSCA 268
- Australian Securities and Investments Commission v Rich [2005] NSWCA 152
- R v Bonython (1984) 38 SASR 45
- Mulato v R [2006] NSWCCA 282
- Heath v R [2016] NSWCCA 24
- Goodridge v R [2014] NSWCCA 37
- Jolly v R (2013) 229 A Crim R 198
- Hammond v R [2008] NSWCCA 138
- R v Fuller [2010] NSWCCA 192
- R v Fahda [2013] NSWCCA 86
- O'Neil-Shaw v R [2010] NSWCCA 42
- Hone v Western Australia (2007) 179 A Crim R 138