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Court of Criminal Appeal 24 November 2017

AP v R

[2017] NSWCCA 270

Sexual offences
CRIME APPEALS SENTENCING ASSESSMENT OF OBJECTIVE SERIOUSNESS PAROLE PERIOD WHERE ISSUE NOT TAKEN AT FIRST INSTANCE

Citation: AP v R [2017] NSWCCA 270
Court: Court of Criminal Appeal, NSW
Date: 24 November 2017
Judge(s): Johnson J, Davies J, Lonergan J (all agreeing in reasons delivered by Lonergan J)

Background

The applicant, identified only by initials to protect the victim's identity, pleaded guilty to three child sexual offences committed against his 11-year-old step-granddaughter during school holidays in January 2013. The offences were not discovered until March 2014, when a handwritten note by the victim was found disclosing the abuse. The applicant initially pleaded not guilty but entered guilty pleas on the first day listed for trial.

At the Parramatta District Court in April 2016, Judge Williams SC DCJ sentenced the applicant to an aggregate term of 7 years and 9 months imprisonment, with a non-parole period of 4 years and 6 months. The three charges comprised aggravated indecent assault (maximum 10 years, with a standard non-parole period) and two counts of sexual intercourse with a child aged 10 to 14 in circumstances of aggravation (maximum 20 years, no standard non-parole period).

The applicant sought leave to appeal to the Court of Criminal Appeal, contending that the sentencing judge had failed to properly assess and articulate the objective seriousness of the two offences under s 66C(2) of the Crimes Act 1900, which do not carry a standard non-parole period.

  • Whether the sentencing judge erred by failing to make and state an adequate assessment of the objective seriousness of Counts 5 and 6 (the two offences under s 66C(2) of the Crimes Act 1900).
  • Whether a more elaborate finding as to objective seriousness was required by law, particularly for offences that do not carry a standard non-parole period.

Decision

The Court of Criminal Appeal rejected the sole ground of appeal. Lonergan J, with whom Johnson J and Davies J agreed, found that the sentencing judge had made a sufficient assessment of objective seriousness in the circumstances of the case.

The sentencing judge had noted the median head sentence for s 66C(2) offences, acknowledged the applicant's submission that objective seriousness was below the mid-range, and then stated that the two counts under s 66C were "objectively serious matters." Lonergan J held that this language, read in context with the whole of the remarks on sentence, disclosed a genuine assessment rather than a mere formula.

The Court applied the principle from Sharma v R [2017] NSWCCA 85, which confirmed that while greater precision in assessing objective seriousness may be desirable, it is not legally essential. The sentencing judge's use of the phrase "objectively serious matters" was not erroneous, even if somewhat imprecise, and the indicative sentences imposed for those counts were consistent with the assessment made.

The Court also noted that no submission was made at first instance requesting a more elaborate finding. This further undermined the suggestion that the remarks on sentence were legally inadequate. No error was demonstrated, and leave to appeal was granted but the appeal dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established where a sentencing judge described two serious child sexual offences as "objectively serious matters," provided the assessment was supported by the surrounding reasoning and the indicative sentences imposed.
  • Under the principles affirmed in Sharma v R, greater precision in articulating objective seriousness is desirable but not a legal requirement, even for offences that do not carry a standard non-parole period.
  • The absence of any objection at first instance to the adequacy of the sentencing judge's findings was a relevant consideration in rejecting the appeal ground.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's assessment of objective seriousness must be read in the context of the entire remarks on sentence, not evaluated by reference to isolated phrases alone.
  • Where an offence does not carry a standard non-parole period, the sentencing court is not relieved of the obligation to assess objective seriousness, but the form and precision of that assessment remain a matter of degree rather than strict formula.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 5, 21A, 53A

Cases:
- Sharma v R [2017] NSWCCA 85
- Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82
- Charbaji v R [2011] NSWCCA 181
- Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150
- Gal v R [2015] NSWCCA 242
- Georgopolous v R [2010] NSWCCA 246
- Harris v R [2015] NSWCCA 81
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- R v Campbell [2014] NSWCCA 102
- R v Sivell [2009] NSWCCA 286
- R v Van Ryn [2016] NSWCCA 1
- Simpson v R [2014] NSWCCA 23
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44