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Court of Criminal Appeal 5 July 2017

NG v R

[2017] NSWCCA 161

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE RESENTENCING FOR HISTORICAL OFFENCES NON

Citation: NG v R [2017] NSWCCA 161
Court: NSW Court of Criminal Appeal
Date: 5 July 2017
Judges: Johnson J, Beech-Jones J, Fagan J

Background

The applicant pleaded guilty to seven sexual offences across two separate charge periods. The first group of offences occurred in the mid-1970s, when the applicant was approximately 18 years old, against an 8-year-old girl. Those charges were brought under the then-applicable provisions of the Crimes Act 1900 (ss 76 and 76A), which had lower maximum penalties than the equivalent provisions enacted later.

The second group of offences occurred between 2010 and 2012, when the applicant was in his early 50s, against the young daughter of his de facto partner. Those charges were brought under ss 66A(1) and 66C(1) of the Crimes Act 1900.

In the District Court, Acting Judge Delaney imposed an aggregate sentence of 14 years with a non-parole period of 10 years. The applicant sought leave to appeal, arguing that the sentencing judge had applied an incorrect maximum penalty to one count and had confused the particulars of substantive counts with those on a Form 1 (a document listing related offences taken into account at sentencing without a separate conviction).

  • Whether the sentencing judge applied the wrong maximum penalty to the s 66A(1) offence (Count 6), thereby causing the sentencing discretion to miscarry
  • Whether the sentencing judge erred in assessing the objective seriousness of the historical offences by confusing a substantive count with a Form 1 offence
  • Whether the aggregate sentence was manifestly excessive
  • (Abandoned) Whether the sentencing judge breached the principle in R v De Simoni by treating an uncharged aggravating circumstance as relevant to penalty

Decision

Ground 4: Wrong maximum penalty for Count 6

The Crown conceded this ground. The sentencing judge had been provided with incorrect information and applied the maximum penalty from an amended version of s 66A, which removed the distinction between the common and aggravated offences and set life imprisonment as the maximum. At the time of the offence, s 66A(1) carried a maximum of 25 years, not life imprisonment. The Court accepted that applying the wrong maximum caused the sentencing discretion to miscarry, requiring the Court to resentence the applicant afresh.

Ground 1: Confusion between substantive count and Form 1 offence

The Court found that the sentencing judge had mistakenly identified the two Form 1 offences by the wrong sequence numbers. This was not merely a labelling error. The error caused the judge to attribute to both Form 1 offences a discount that should, under R v Ellis, apply only where an offence is self-reported without prior accusation by the complainant. Only one of the two Form 1 offences met that criterion. The confusion therefore infected the objective seriousness assessment for Count 1 and the Form 1 matters.

Resentencing

The Court resentenced the applicant across all counts. For Count 6, the Court set an indicative sentence of 7 years and 6 months with a non-parole period of 5 years and 8 months, after applying the 25% discount for early guilty pleas. For Count 7, the indicative sentence was 5 years and 9 months with a non-parole period of 4 years and 4 months. The Court noted that the complainant's age of 10 years placed her at the lower end of the range covered by s 66C(1), making the offence more serious than it would have been had the complainant been older within that range. Applying the principle of totality, the Court reduced the aggregate sentence.

Orders Made

  • Leave to appeal granted
  • Sentences imposed by Acting Judge Delaney on 19 August 2016 quashed
  • Applicant resentenced to an aggregate term of 12 years and 7 months imprisonment, comprising a non-parole period of 9 years and 6 months commencing 17 February 2016 and expiring 16 August 2025, with a balance of term of 3 years and 1 month expiring 16 September 2028
  • Earliest parole eligibility date: 17 August 2025

Key Takeaways

  • Applying an incorrect maximum penalty to a charge is a material error that causes the sentencing discretion to miscarry, requiring the appellate court to resentence afresh rather than merely adjust the original sentence.
  • Confusion in sentencing remarks between the particulars of a substantive count and those of a Form 1 offence can constitute a ground of appeal where the confusion affects the assessment of objective seriousness or the application of sentencing discounts.
  • Under R v Ellis and s 23 of the Crimes (Sentencing Procedure) Act 1999, a discount for self-reporting applies only where the offender volunteered information about an offence that had not been the subject of any accusation by the complainant. The discount does not automatically apply to all Form 1 offences.
  • Where a provision such as s 66C(1) covers a range of ages, an offence committed against a complainant at the lower end of that age range is treated as more serious than one involving a complainant at the upper end.
  • Historical sexual offences charged under earlier provisions of the Crimes Act carry lower maximum penalties than their modern equivalents, and the sentencing court must apply the maximum that was in force at the time of the offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A, 66C, 76, 76A, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Ellis (1986) 6 NSWLR 603
- Donaghey v R [2015] NSWCCA 119
- Andreata v R [2015] NSWCCA 239
- Panetta v R [2016] NSWCCA 85
- RR v R [2011] NSWCCA 235; 216 A Crim R 489
- AJB v R [2007] NSWCCA 51; 169 A Crim R 32
- BP v R [2010] NSWCCA 303
- Henderson v R [2016] NSWCCA 8
- Magnuson v R [2013] NSWCCA 50
- MPB v R [2013] NSWCCA 213; 234 A Crim R 576
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
- TO v R [2017] NSWCCA 12