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Court of Criminal Appeal 6 September 2017

R v JF

[2017] NSWCCA 217

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE THIRTEEN COMPLAINANTS AGED 14 TO 16 MANIFEST INADEQUACY OF SENTENCE FAILURE TO ASSESS OBJECTIVE SERIOUSNESS FAILURE TO APPLY TOTALITY PRINCIPLE

Citation: R v JF [2017] NSWCCA 217
Court: NSW Court of Criminal Appeal
Date: 6 September 2017
Judges: Hoeben CJ at CL, Fullerton J, Hamill J

Background

The respondent pleaded guilty in the Local Court on 30 June 2015 to 21 sexual offences against thirteen male complainants aged between 13 and 15 years. The offending spanned approximately two years between 2012 and 2014. Using fictitious online personas across multiple social media platforms, the respondent initiated and maintained contact with the complainants, procured them for sexual activity, and in several cases met and had sexual intercourse with them.

The offences included procuring children for unlawful sexual activity, sexual intercourse with persons aged 10 to 16, inciting acts of indecency, causing a child to participate in child prostitution, possessing child abuse material, and using a carriage service to send indecent material to a person under 16. Forensic analysis of devices seized during a search warrant revealed a large volume of sexually explicit communications, images of genitalia exchanged with complainants, and child abuse material.

The District Court imposed an aggregate sentence of 7 years and 6 months imprisonment for the state offences, with a non-parole period of 3 years and 3 months, partially accumulated on a Commonwealth sentence to produce a total effective sentence of 8 years. The Director of Public Prosecutions appealed that sentence as manifestly inadequate.

  • Whether the sentencing judge failed to properly assess the objective seriousness of the offending
  • Whether the aggregate sentence adequately reflected that objective seriousness
  • Whether the non-parole period was erroneously lenient
  • Whether the respondent's prospects of rehabilitation were assessed correctly
  • Whether the sentencing judge properly applied the totality principle when constructing the aggregate sentence

Decision

The Court of Criminal Appeal, in reasons delivered by Fullerton J (with Hoeben CJ at CL and Hamill J agreeing), found that the Crown had established multiple errors in the sentencing judge's approach, each of which likely contributed to a manifestly inadequate aggregate sentence.

The Court found the sentencing judge failed to properly assess the objective seriousness of the offending. The scale of the conduct, the number of complainants, the deliberate and sustained use of deception, and the exploitation of children through online platforms across a two-year period warranted a significantly more serious assessment than was reflected in the indicative sentences imposed.

The Court also found error in the assessment of the respondent's rehabilitation prospects and in the application of totality principles. The aggregate sentence, when viewed against the entirety of the offending against thirteen complainants, did not adequately capture the overall criminality involved.

On re-sentencing, the Court accepted that a finding of special circumstances remained appropriate, given the value of supervised parole in reducing the risk of reoffending, but declined to reduce the proportion of the non-parole period to the same extent as the original sentencing judge had done.

Orders Made

  • Crown appeal allowed
  • Sentence imposed for the Commonwealth offence under s 474 of the Criminal Code Act (Cth) confirmed
  • Aggregate sentence imposed by Toner DCJ on 30 November 2016 for the Crimes Act (NSW) offences quashed
  • In substitution, the respondent sentenced to an aggregate term of imprisonment of 12 years with a non-parole period of 7 years, commencing 6 February 2016 and expiring 5 February 2023, with a balance of term of 5 years expiring 5 February 2028

Key Takeaways

  • The Court of Criminal Appeal confirmed that a manifestly inadequate sentence does not require identification of specific legal error, but where the Crown elects to identify discrete errors, it must demonstrate those errors likely contributed to the inadequacy of the sentence rather than simply show the errors obligate resentencing.
  • A sustained course of child sexual offending involving multiple complainants, deliberate online deception, and contact offences against some victims warranted significantly greater weight on objective seriousness than the original sentencing judge applied.
  • Aggregate sentencing must reflect the totality of criminal conduct across all offences and all victims; a failure to do so constitutes an error in the application of the totality principle.
  • The original aggregate sentence of 7 years and 6 months was replaced with one of 12 years, representing a near-doubling of the effective state sentence, reflecting the Court's view of the overall gravity of the respondent's conduct.
  • A finding of special circumstances can be maintained on resentencing even where the extent of the reduction in the proportional non-parole period is curtailed compared to what the original sentencing court allowed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61N(1), 66C(1), 66C(3), 66EB(2), 91D(1)(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Criminal Code Act 1995 (Cth), s 474.27A(1)
- Crimes Act 1914 (Cth), s 16BA

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- CMB v Attorney General for New South Wales [2015] HCA 9
- Dinsdale v R (2000) 202 CLR 321
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Kentwell v R (2014) 252 CLR 601
- Muldrock v R (2011) 244 CLR 120
- R v AJP (2004) 150 A Crim R 575
- R v MAK; R v MSK (2006) 167 A Crim R 159
- Doe v R [2013] NSWCCA 248
- Gifford v R [2016] NSWCCA 302
- JM v R [2014] NSWCCA 297