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Court of Criminal Appeal 11 March 2016

R v Crowe

[2016] NSWCCA 39

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE AGGREGATE SENTENCE IMPOSED CROWN APPEAL SUCCESSFUL SENTENCE INCREASED.

Citation: R v Crowe [2016] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 11 March 2016
Judge(s): Hoeben CJ at CL; Johnson J; Davies J

Background

The respondent was identified through DNA evidence by the Cold Case Justice Project as the perpetrator of a series of serious offences against five child victims between August 1989 and September 1991. The offences included kidnapping and sexual assault of children aged between nine and seventeen years. The respondent was between nineteen and twenty-one years old at the time and was unknown to all five victims.

He pleaded guilty in the Local Court on 18 March 2015 to eleven child sex offences across the five victims. Sentencing occurred on 3 September 2015, approximately twenty-two years after the offending. At sentence, the respondent was suffering from schizophrenia, which was found to be unrelated to the offending.

The sentencing judge (Garling ADCJ) imposed an aggregate sentence of twelve years' imprisonment with a non-parole period of seven years and six months. The Director of Public Prosecutions appealed under section 5D(1) of the Criminal Appeal Act 1912 on the single ground that the sentence was manifestly inadequate.

  • Whether the aggregate sentence of twelve years with a non-parole period of seven years and six months was manifestly inadequate for eleven offences of this gravity against five victims.
  • Whether, in the context of a Crown appeal, the residual discretion not to intervene should be exercised in the respondent's favour, having regard to the strong subjective case (including historical delay, mental illness, and hardship in custody).
  • Whether the sentencing judge's approach to accumulating indicative sentences across victims, particularly victims RW and RN, was adequate to reflect the overall criminality.

Decision

Hoeben CJ at CL (with Johnson J and Davies J agreeing) held that the Crown appeal should succeed. The Court accepted that the offending was of the utmost seriousness: it involved kidnapping, threats with a weapon, and sexual assault of young children by a stranger, across multiple occasions and victims. General and specific deterrence, denunciation, and the protection of the community were all significant sentencing considerations under section 3A of the Crimes (Sentencing Procedure) Act 1999.

The Court acknowledged the respondent's strong subjective case. The offences were historical, occurring roughly twenty-two years before sentencing. The respondent's schizophrenia, while not causally connected to the offending, was a factor in mitigation. Hardship in custody arising from his classification and mental health was also taken into account. These factors, however, were insufficient to justify a sentence of the length imposed.

The Court found that while the indicative sentences set by Garling ADCJ were individually adequate, his Honour had erred by failing to accumulate those sentences sufficiently across victims, particularly for victims RW and RN who suffered the most serious offending. The aggregate sentence produced by his Honour's approach was, in the Court's view, an affront to the administration of justice and risked undermining public confidence in the criminal justice system.

The Court declined to exercise the residual discretion to refrain from intervening. It quashed the aggregate sentence and resentenced the respondent, increasing the total term to fifteen years with a non-parole period of ten years.

Orders Made

  • The Crown appeal is allowed.
  • The aggregate sentence imposed by Garling ADCJ on 3 September 2015 is quashed.
  • In lieu thereof, the respondent is sentenced to a term of imprisonment consisting of a non-parole period of 10 years and a balance of term of 5 years (total 15 years), commencing 18 August 2014.
  • The respondent will be eligible for release to parole on 17 August 2024.
  • The balance of term will expire on 17 August 2029.

Key Takeaways

  • Individually adequate indicative sentences within an aggregate will not necessarily produce an adequate outcome if the sentencing court fails to accumulate those sentences sufficiently across multiple victims and separate incidents.
  • A strong subjective case, including historical delay of twenty-two years and a diagnosed mental illness, will be weighed against the gravity of the offending but does not automatically foreclose a successful Crown appeal where the resulting sentence is manifestly inadequate.
  • The Court of Criminal Appeal confirmed that an important function of a Crown appeal against sentence is to lay down principles for the guidance of future sentencing courts, particularly where the inadequacy of a sentence amounts to an affront to the administration of justice.
  • Where hardship in custody arises from classification status rather than from exceptional circumstances markedly different from the offender's pre-custody lifestyle, that hardship carries reduced mitigatory weight in the resentencing exercise.
  • Under section 5D(1) of the Criminal Appeal Act 1912, the residual discretion not to intervene even in a successful Crown appeal remains available, but will not be exercised where the sentence is so inadequate as to undermine public confidence in the criminal justice system.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) -- ss 61(1), 61C(1)(b), 61D(1), 61E(1), 61F, 61J(1), 61J(2)(b), 61L, 61P, 66A, 90A
- Crimes (Sentencing Procedure) Act 1999 (NSW) -- ss 3A, 21A(2)(j)
- Criminal Appeal Act 1912 (NSW) -- s 5D(1)
- Sentencing Act 1989 (NSW)

Cases cited:
- AB v R [2015] NSWCCA 31
- Aslan v R [2014] NSWCCA 114
- Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Behman v R [2014] NSWCCA 239
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- CMB v Attorney-General (NSW) [2015] HCA 9; 89 ALJR 407
- Cullen v R [2014] NSWCCA 162
- Davis v R [2006] NSWCCA 392
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Doyle v R; R v Doyle [2014] NSWCCA 4
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Magnuson v R [2013] NSWCCA 50
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- MPB v R [2013] NSWCCA 213
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v AEM (Snr); KEM; MM [2002] NSWCCA 58
- R v Brown [2012] NSWCCA 199