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8
Court of Criminal Appeal 24 February 2017

CT v R

[2017] NSWCCA 15

Sexual offences
CRIMINAL LAW SEVEN HISTORIC SEX OFFENCES WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: CT v R [2017] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 24 February 2017
Judges: Hoeben CJ at CL; Johnson J; Latham J

Background

The applicant was convicted by jury in the District Court of seven historic child sexual offences committed against his stepdaughter during the 1980s, when the complainant was aged between approximately six and ten years old. The offences ranged from indecent assault to carnal knowledge and multiple acts of penile-vaginal and anal intercourse. Count 8, an act of oral intercourse, occurred after the complainant had told the applicant she no longer wished to engage in sexual contact.

The complainant did not report the offending to police until October 2013, more than two decades after the conduct had ceased. Huggett DCJ sentenced the applicant in December 2014 to an aggregate non-parole period of seven years, with a balance of term of five years, giving a total head sentence of twelve years.

The applicant sought leave to appeal against the aggregate sentence on seven grounds, arguing it was manifestly excessive and that the sentencing judge had made specific errors in weighing mitigating factors and applying sentencing principles.

  • Whether the aggregate sentence of twelve years (non-parole period of seven years) was manifestly excessive.
  • Whether the sentencing judge failed to take into account and apply established sentencing practices and patterns from the late 1980s, when the offending occurred.
  • Whether the sentencing judge placed undue emphasis on general deterrence, general denunciation, and protection of the community.
  • Whether the sentencing judge gave appropriate weight to the applicant's prior good character.
  • Whether the applicant's voluntary cessation of offending should have operated as a mitigating factor.
  • Whether the sentencing judge gave too much weight to the ages of the complainant and the applicant's position of authority, particularly in relation to Count 8.
  • Whether the sentencing judge failed to take into account a relevant objective fact (specifically, the complainant's apparent willingness or curiosity in some interactions).

Decision

Manifest excess (Ground 1): The Court of Criminal Appeal rejected the contention that the aggregate sentence was manifestly excessive. It noted that the aggregate non-parole period represented roughly 58 per cent of the head sentence, and that the sentencing judge had expressly identified this and characterised the sentence as the minimum appropriate for the offending. The court noted the applicant had been exposed to three counts carrying a maximum of 20 years each, one count carrying 10 years, and three counts carrying 6 years, and that the aggregate indicative sentences totalling 32 years demonstrated a very significant degree of concurrence had already been applied in the applicant's favour.

Sentencing patterns and deterrence (Grounds 2 and 3): The court found no error in the sentencing judge's approach to historic sentencing patterns. The sentencing judge had correctly applied current sentencing standards to the historic offences, in accordance with established authority. The court also rejected the submission that general deterrence had been over-emphasised; the principle properly applied to child sexual offences of this kind.

Good character, cessation of offending, and other mitigating factors (Grounds 4, 5, and 7): The court found that the sentencing judge had given appropriate, if not generous, weight to the applicant's prior good character, his subsequent offence-free conduct, and his personal circumstances. The court accepted that voluntary cessation of offending can be a mitigating factor but found that the judge's treatment of it in this case attracted no error. Any apparent failure to address a particular objective fact did not produce a material error affecting the sentence.

Complainant's apparent willingness and age as aggravating factors (Ground 6): The court rejected the submission that the complainant's expressed curiosity or apparent willingness in the early stages of offending was a relevant mitigating consideration. A child of six to ten years old cannot consent to sexual activity, and any such willingness is legally irrelevant. The court found no error in how the sentencing judge treated the complainant's age and the applicant's position of authority, describing the offending as an egregious and gross abuse of trust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A child's apparent curiosity or willingness in the context of child sexual offending carries no mitigating weight at sentencing; children below the age of consent are legally incapable of consenting, and the concept is irrelevant to the sentencing exercise.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing courts are required to apply current sentencing standards to historic child sexual offences, not the sentencing patterns or practices that prevailed at the time the offending occurred.
  • Where a large number of serious counts are charged and significant concurrence has already been applied in calculating indicative sentences, an applicant faces a substantial hurdle in demonstrating that the resulting aggregate sentence is unreasonable or plainly unjust.
  • Voluntary cessation of offending may operate as a mitigating factor, but the weight it attracts will be limited where a separate, later offence was committed after the complainant had expressly withdrawn consent to further contact.
  • General deterrence remains a proper and significant sentencing consideration for child sexual offences, even where the offending is historic and the offender has since led an otherwise lawful life.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(1), 66A, 66C(2), 67
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 44(2)
- Probation and Parole Act 1983 (NSW)
- Financial Transaction Reports Act 1988 (Cth)

Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- Power v The Queen [1974] HCA 26; 131 CLR 623
- Ryan v The Queen [2001] HCA 21; 206 CLR 267
- Regina v MJR [2002] NSWCCA 129; 54 NSWLR 368
- Regina v Bacon [2000] NSWCCA 549; 120 A Crim R 28
- Regina v Lopez [1999] NSWCCA 245
- AJB v Regina [2007] NSWCCA 51; 169 A Crim R 32
- Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
- Shannon v Regina [2006] NSWCCA 39
- Vuni v Regina [2006] NSWCCA 171
- PWB v R [2011] NSWCCA 84; 234 A Crim R 576
- Daniel Clayton Scott v R [2011] NSWCCA 221; 213 A Crim R 407
- Magnuson v R [2013] NSWCCA 50
- MPB v R [2013] NSWCCA 213
- Franklin v R [2013] NSWCCA 122
- R v BA [2014] NSWCCA 148
- R v Burns [2007] NSWCCA 228
- R v Dent (Court of Criminal Appeal (NSW), 14 March 1991, unrep)
- R v Nelson [2016] NSWCCA 130
- Kerr v R [2016] NSWCCA 218