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15
Court of Criminal Appeal 5 July 2017

R v CTG

[2017] NSWCCA 163

Sexual offencesFirearms & weapons
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE SENTENCE MANIFESTLY INADEQUATE CROWN APPEAL ALLOWED OFFENDER RESENTENCED.

Citation: R v CTG [2017] NSWCCA 163
Court: NSW Court of Criminal Appeal
Date: 5 July 2017
Judges: Hoeben CJ at CL; R A Hulme J; Wilson J

Background

The respondent, the uncle of a three-year-old girl, was sentenced in the District Court in February 2017 following early guilty pleas to seven offences. These comprised five counts of sexual intercourse with a child under 10 years (contrary to s 66A(1) of the Crimes Act 1900 (NSW)), one count of using a child under 14 to make child abuse material (s 91G(1)(a)), and one count of unlawful possession of a pistol. The offences occurred between August and December 2014, partly in the family home of the victim.

The offending came to light when police executed a search warrant at the respondent's home and discovered a concealed mobile phone containing photographic evidence of the sexual assaults. The respondent admitted in a recorded interview that the offending had occurred, though he claimed to have no recollection of committing the acts. He had a prior 2005 conviction for possession of child pornography.

The Director of Public Prosecutions appealed the aggregate sentence of 9 years' imprisonment with a non-parole period of 5 years and 9 months, arguing the sentence was manifestly inadequate.

  • Whether the sentencing judge erred in assessing the objective seriousness of the s 66A(1) offences by treating the absence of aggravating features as a mitigating consideration.
  • Whether the sentencing judge gave insufficient weight to the victim's very young age, vulnerability, and the inevitable psychological harm arising from the offending.
  • Whether the sentencing judge failed to account for the fact that two offences were committed in the victim's own home.
  • Whether the sentencing judge failed to properly apply the principle of totality, resulting in a manifestly inadequate aggregate sentence.

Decision

Hoeben CJ at CL (with whom Hulme J and Wilson J agreed) found that the sentencing judge had committed a series of identifiable errors, each of which contributed to a sentence that was manifestly inadequate. These errors, taken together, justified intervention by the Court of Criminal Appeal.

The first error was in the assessment of objective seriousness. The sentencing judge had treated the absence of factors that would have made the offending worse (such as greater physical violence) as though they reduced the seriousness of the offending. This approach was incorrect: the absence of additional aggravating features does not convert offences of this gravity into lower-range cases. The victim's age of three, her inherent vulnerability, and the inevitable psychological harm of the abuse were factors that required substantial weight and did not receive it.

The sentencing judge also failed to take into account, in relation to two of the five sexual intercourse offences, that those acts were committed within the victim's own home. This was a relevant aggravating circumstance that went unaddressed.

On totality, the Court found that the aggregate sentence of 9 years failed to reflect the true criminality of the overall offending. The moral culpability of the respondent was substantial and his subjective case was not particularly strong. Beyond the utilitarian value of the early guilty pleas, there was little by way of genuine mitigation.

Orders Made

  • Crown appeal allowed.
  • The sentence imposed by Williams SC DCJ on 24 February 2017 is quashed.
  • The respondent is resentenced to imprisonment for 12 years with a non-parole period of 8 years.
  • The sentence is dated from 7 May 2015, with the non-parole period expiring 6 May 2023 and the total term expiring 6 May 2027.

Key Takeaways

  • A sentencing court errs in principle when it treats the absence of additional aggravating features as a positive mitigating factor in cases of serious child sexual abuse: this approach understates objective seriousness.
  • The Court of Criminal Appeal confirmed that the victim's very young age (three years old), heightened vulnerability, and the inevitability of psychological harm are matters that must receive substantial weight in sentencing for s 66A(1) offences.
  • Where child sexual abuse is committed within the victim's own home, that circumstance is a relevant aggravating factor that must be taken into account.
  • In dismissing the aggregate sentence as manifestly inadequate, the Court increased the total term from 9 years to 12 years and the non-parole period from 5 years and 9 months to 8 years, reflecting the full weight of multiple serious offences against a very young child.
  • A finding of special circumstances was maintained, partly on the basis of a Crown concession, though Hoeben CJ at CL noted that the underlying considerations provided only a weak basis for such a finding.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 91G
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Appeal Act 1912 (NSW), s 5D
- Firearms Act 1996 (NSW), s 7

Cases:
- Bravo v R [2015] NSWCCA 302
- CMB v Attorney-General for the State of New South Wales [2015] HCA 9; 256 CLR 346
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- EG v R [2015] NSWCCA 21
- Harris v R [2015] NSWCCA 81
- Jonson v R [2016] NSWCCA 286
- Khoury v R [2011] NSWCCA 118
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Mills v R [2017] NSWCCA 87
- Mulato v Regina [2006] NSWCCA 282
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v BA [2014] NSWCCA 148
- R v Barker [2016] NSWCCA 193
- R v Dodd (1991) 57 A Crim R 349
- R v Gavel [2014] NSWCCA 56
- R v JP [2015] NSWCCA 267
- R v ND [2016] NSWCCA 103
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460