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Court of Criminal Appeal 23 June 2017

Aboud v R

[2017] NSWCCA 140

Sexual offences
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE PAROLE PERIOD WHETHER A NON OPERATED WITH AUTHORITIES

Citation: Aboud v R [2017] NSWCCA 140
Court: Court of Criminal Appeal, NSW
Date: 23 June 2017
Judges: Macfarlan JA, Johnson J, Harrison J (Harrison J delivered the principal judgment; the others agreed)

Background

The appellant pleaded guilty in the District Court at Lismore to a series of federal offences involving the use of a carriage service to menace, harass or offend, and to procure or groom children under 16 for sex. The offending occurred between January and July 2011, when the appellant set up two Facebook accounts under false names and used them to send offensive and sexually explicit messages to eight girls aged between 13 and 15. The conduct included soliciting naked photographs, threatening to expose victims' online activity to their parents, and offering money for sex.

The appellant was arrested in July 2011, cooperated with police at that time, and was then released pending further investigation. No further contact was made by police for almost four years, until his re-arrest in March 2015. The delay was entirely attributable to failures within the investigating police team.

Wells DCJ sentenced the appellant to an overall effective sentence of seven years with a non-parole period of five years and three months (approximately 75 percent of the head sentence), commencing 24 June 2016. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive, raising three specific complaints about the sentencing judge's approach.

  • Whether the sentencing judge erred in her treatment of the nearly four-year unexplained delay between the appellant's original arrest and his eventual re-arrest and charging.
  • Whether the sentencing judge erred in setting a non-parole period of approximately 75 percent of the head sentence, rather than the customary two-thirds ratio.
  • Whether the sentencing judge failed to give proper weight to the appellant's cooperation with police, including providing passwords and consenting to access of his Facebook accounts.

Decision

Ground 1: Delay in prosecution

The Court accepted that the delay was substantial and that no part of it was attributable to the appellant. The sentencing judge had characterised the delay as "substantial and really inexcusable," and the Court found this demonstrated she was fully aware of its nature and significance. The appellant had not given evidence at the sentencing hearing about the personal effects of the delay, but the Court noted that an offender need not prove specific detrimental consequences before delay becomes relevant. Despite this, the Court found no demonstrated error: the appellant could not identify precisely how the sentencing judge's treatment of the delay was deficient, and the remarks on sentence showed she did take it into account, including in her assessment of rehabilitation.

Ground 2: The non-parole period ratio

The customary ratio between a non-parole period and the head sentence is two-thirds, but it is not a fixed rule. Departing upward from that ratio requires the sentencing court to identify special circumstances justifying the longer non-parole period, or conversely, a lack of special circumstances that would otherwise reduce it. The Court accepted that a 75 percent ratio is at the outer limit of what is permissible and acknowledged that a non-parole period set too high can itself become punitive rather than merely protective. However, the Court found the sentencing judge had not fallen into error: the judge was entitled to take into account that the appellant's rehabilitation was already well advanced by the time of sentencing, reducing the need for an extended period of supervised parole. The ratio, though high, was within the range open to her Honour.

Ground 3: Cooperation with police

The appellant argued the sentencing judge had undervalued his cooperation, particularly his provision of Facebook passwords and account access. The Court rejected this ground. By the time passwords were provided, the appellant had already made full admissions and acknowledged sole ownership of the accounts. The Court characterised the provision of passwords as commendable but effectively of minimal additional significance in the circumstances. A fair reading of the sentencing remarks showed the judge had credited the appellant's cooperation from the outset, and there was no indication she treated that cooperation critically or inadequately.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Unexplained prosecutorial delay remains a relevant mitigating factor at sentencing even without direct evidence of the offender's subjective experience of that delay, though the weight accorded may vary depending on what is established.
  • A non-parole period set at approximately 75 percent of the head sentence sits at the outer limit of what NSW sentencing courts may impose; it does not automatically constitute error, but a sentencing judge must be careful that such a ratio does not become punitive in effect.
  • Where an offender's rehabilitation is already substantially advanced by the time of sentencing, a sentencing court may treat that progress as a reason to limit, rather than extend, the non-parole period relative to the head sentence.
  • Cooperation with police that follows and flows naturally from prior full admissions may attract limited additional weight, particularly where providing further assistance would have been difficult to withhold without undermining earlier concessions.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed it will not interfere with a sentence simply because a different approach to mitigating factors was available; an applicant must identify a specific and material error in the sentencing judge's reasoning.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 474.17(1), 474.26(1), 474.27(1)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Todd [1982] 2 NSWLR 517
- Sabra v R [2015] NSWCCA 38
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Griffiths v R (1989) 167 CLR 372; [1989] HCA 39
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Afiouny v R [2017] NSWCCA 23
- Bick v R [2006] NSWCCA 408
- Lam v R; Le v R (2014) 241 A Crim R 562; [2014] WASCA 114
- R v Acosta [1999] NSWCCA 334
- R v Paull (1990) 20 NSWLR 427
- Ly v R [2007] NSWCCA 28
- R v Buhar (NSWCCA, 14 October 1998, unreported)