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Court of Criminal Appeal 2 May 2016

Ford v R

[2016] NSWCCA 69

Sexual offences
CRIMINAL LAW SENTENCING ALLEGED APPEARANCE OF BIAS PROTECTION OF THE COMMUNITY DISPARITY

Citation: Ford v R [2016] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 2 May 2016
Judge(s): Basten JA; McCallum J; Davies J

Background

The applicant pleaded guilty in the District Court to nine counts of sexual offending against five children, with a further 44 offences taken into account on Forms 1. The sentencing judge described the totality of the offending as "arguably in the worst category" of child sexual abuse, and imposed a total effective sentence of 21 years imprisonment with a non-parole period of 15 years, after allowing a 25% discount for early guilty pleas.

The offending occurred within a paedophile network centred on a domestic group of three adults who sexually abused children, produced and exchanged child abuse material, and were connected to a wider international network. The applicant, along with two co-offenders (the parents of two of the victims), was sentenced by the same judge within a single week in April 2012.

The notice of appeal was not filed until November 2015, more than three years after sentencing. The applicant attributed the delay to advice from his former solicitor that further charges might follow if he appealed, but the Court found that explanation inadequately proved and doubtful in any event.

  • Whether the extension of time to appeal should be granted, given the substantial delay
  • Whether the sentencing judge's expressed distaste for the offending gave rise to an appearance of bias affecting the sentence
  • Whether the sentencing judge misapplied the principle from Veen v The Queen (No 2) by using the protection of the community as a primary rather than limiting sentencing consideration
  • Whether the applicant's sentence, identical to that of one co-offender, gave rise to a justifiable sense of grievance given differences in the offending

Decision

Extension of time: The Court accepted that the explanation for delay was not adequately established. The former solicitor had not been asked to provide his account of the conversation relied upon by the applicant. The Court nonetheless proceeded to assess the application on its merits given the length of the sentences involved.

Alleged appearance of bias (Ground 3): The applicant argued that the sentencing judge's remarks expressing difficulty in avoiding "inflammatory language" and describing the offending as reflecting "sexual depravity" demonstrated that personal views had infected the sentencing. The Court rejected this. Denunciation is a recognised sentencing purpose under the Crimes (Sentencing Procedure) Act 1999 (NSW), and a judge's expression of appropriate moral condemnation does not constitute bias. The test, drawn from Johnson v Johnson, asks whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the task. The Court found no basis for such an apprehension here. The judge's remarks were consistent with proper discharge of the sentencing function, and the reasons themselves were carefully structured and legally sound.

Misapplication of Veen (No 2) principles (Ground 1): The applicant contended the judge had elevated protection of the community into a dominant sentencing consideration in a manner inconsistent with Veen (No 2), which requires that a sentence not exceed what is proportionate to the offence merely to protect the community. The Court found no such error. The judge had correctly identified community protection as a legitimate but not overriding consideration, and the sentence was proportionate to offending that included counts carrying maximum penalties of life imprisonment.

Disparity (Ground 2): The applicant received the same total effective sentence as one of the co-offenders (the father of two victims), despite differences in their respective offending. The Court held that any disparity did not give rise to a justifiable sense of grievance. The applicant's overall criminality was substantially greater: he had 44 offences on Forms 1 compared to 9 for the co-offender, and his offending included very serious acts against a four-year-old child. The Court also noted that the applicant's own counsel at sentencing had submitted that the co-offender's sentence would be appropriate in the applicant's case. The Court reiterated the principle from Zreika v R that an appeal is not an occasion for reformulating the case that was put below.

Orders Made

  • The application for an extension of time within which to bring the appeal was refused.

Key Takeaways

  • A sentencing judge's expression of moral condemnation or distaste for serious offending does not, without more, give rise to an appearance of bias. Denunciation is a statutorily recognised sentencing purpose in NSW, and appropriately strong language in that context is consistent with impartiality.

  • Under Veen v The Queen (No 2), community protection operates as a limiting rather than primary sentencing consideration: a sentence must not exceed what is proportionate to the offence solely to protect the community. The Court of Criminal Appeal confirmed that the sentencing judge here applied that principle correctly.

  • Disparity between co-offenders' sentences does not automatically generate a justifiable sense of grievance. A comparative assessment must account for differences in the totality and gravity of each offender's conduct.

  • Where a concession is made by an applicant's own counsel at the original sentencing hearing, it is difficult to sustain a contrary argument on appeal. An appeal is not an opportunity to reformulate the position advanced below.

  • Applications for extension of time to appeal require adequate proof of the explanation for delay. An assertion based on a conversation with a former solicitor, without that solicitor's evidence, is unlikely to be sufficient on its own.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61J, 61J(1), 61JA(1), 61M(2), 61O(2A), 66A(2), 66EB(3), 80G
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A(f), 3A(g), 21A(2), 21A(2)(d), 21A(3), 33

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
- Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
- Zreika v R [2012] NSWCCA 44
- Inkson v The Queen (1996) 6 Tas R 1; 88 A Crim R 334