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Court of Criminal Appeal 11 October 2017

ST v R

[2017] NSWCCA 245

Sexual offences
SENTENCE APPEAL AGAINST SENTENCE WHETHER MANIFESTLY EXCESSIVE

Citation: ST v R [2017] NSWCCA 245
Court: NSW Court of Criminal Appeal
Date: 11 October 2017
Judge(s): Johnson J, Rothman J, Lonergan J (all agreeing)

Background

The applicant, a stepfather aged between 49 and 51 at the time of the offending, pleaded guilty to a series of sexual offences committed against his stepdaughter between 2012 and June 2014. The victim was aged between 13 and 15 years at the time. The offences occurred in the family home and included acts of indecency and aggravated sexual intercourse.

On 28 September 2015, Judge Farmer SC in the District Court at Parramatta sentenced the applicant to an aggregate term of 9 years and 6 months imprisonment, with a non-parole period of 6 years and 6 months. The sentence reflected six counts on the indictment, plus three additional offences taken into account on a Form 1.

The applicant sought leave to appeal against the aggregate sentence, raising three grounds of appeal.

  • Whether the sentence proceedings miscarried because the indictment was not properly presented
  • Whether the sentencing judge double-counted an element of one of the offences as a separate aggravating factor
  • Whether the aggregate sentence was manifestly excessive

Decision

Ground 1: Indictment not properly presented. The applicant argued a procedural defect in the way the indictment was presented, suggesting this caused the sentencing proceedings to miscarry. The Court of Criminal Appeal rejected this ground, finding no miscarriage arose from the manner in which the indictment had been dealt with.

Ground 2: Double-counting. The applicant contended that the sentencing judge impermissibly treated as an aggravating factor something that was already an element of the offence charged, contrary to established sentencing principle. The Court rejected this ground as well, finding the sentencing judge had not in fact double-counted any element of the offences when assessing their seriousness.

Ground 3: Manifest excess. The Court found the aggregate sentence was not manifestly excessive. The sentencing judge had identified multiple relevant factors: repeated offending over an extended period, the victim's vulnerability and her dependent relationship with the applicant, a significant age gap, the fact that the offending occurred in her own home (effectively trapping her), the applicant's lack of genuine remorse, his attempts to blame the victim during police interview, and the strength of the Crown case at the time guilty pleas were entered. Partial accumulation of sentences was appropriate to reflect the full criminality of the conduct.

The Court observed that comparing sentences across individual cases does not determine whether a sentence is manifestly excessive, citing Vandeventer v R [2013] NSWCCA 33. The sentence was found to fall well within the proper exercise of sentencing discretion for offences of this kind.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • An applicant cannot establish manifest excess simply by pointing to individual cases where offenders appear to have been dealt with more leniently; the Court considers whether the sentence falls within a proper range having regard to all relevant circumstances.
  • Where a sentencing judge identifies aggravating features, the Court of Criminal Appeal will examine whether those features are already elements of the charged offence; treating an element as a separate aggravating factor constitutes legal error, but no such error was established here.
  • In dismissing the appeal, the Court confirmed that partial accumulation of sentences is available and appropriate where multiple offences over an extended period require the total criminality to be properly reflected.
  • Factors including a victim's vulnerability, a position of domestic authority over the victim, offending in the family home, absence of genuine remorse, and attempts to blame the victim are all legitimately relevant to the sentencing exercise.
  • A substantial aggregate sentence for repeated sexual offences against a young child, imposed following guilty pleas on a strong Crown case, was upheld as within the proper exercise of sentencing discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 61J(1), 61M(2), 66C(4), 66D
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(2), 32, 53A(2)
- Criminal Procedure Act 1986 (NSW) s 20

Cases
- AG v R [2016] NSWCCA 102
- Dinsdale v The Queen (2000) 202 CLR 321
- Hili v The Queen (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- Lowndes v The Queen (1999) 195 CLR 665
- Markarian v The Queen (2005) 228 CLR 357
- McDonald v R [2015] NSWCCA 280
- Pham v R [2014] NSWCCA 115
- Power v The Queen (1974) 131 CLR 623
- R v Cramp [2014] NSWCCA 264
- R v Janceski (2005) 64 NSWLR 10
- R v Reilly [2012] NSWCCA 166
- R v Simpson (2001) 53 NSWLR 704
- Swansson v R (2007) 69 NSWLR 406
- Vandeventer v The Queen [2013] NSWCCA 33
- Wong v The Queen (2001) 207 CLR 584