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Court of Criminal Appeal 1 December 2017

Scales v R

[2017] NSWCCA 293

Sexual offences
CRIMINAL LAW SENTENCE APPEAL CHILD SEXUAL OFFENCES AGGRAVATED INDECENT ASSAULT TWO COUNTS OBJECTIVE SERIOUSNESS

Citation: Scales v R [2017] NSWCCA 293
Court: New South Wales Court of Criminal Appeal
Date: 1 December 2017
Judge(s): Hoeben CJ at CL, Price J, Lonergan J

Background

The applicant pleaded guilty at the earliest opportunity to two counts of aggravated indecent assault against the daughters of a family friend, contrary to s 61M(2) of the Crimes Act 1900 (NSW). Both offences occurred in the family home. The first involved a 10-year-old child in 2012, and the second involved a 15-year-old child in 2015. The applicant was 55 and 58 years old at the respective times of offending, and had previously served imprisonment for child sexual assault offences arising from conduct against his foster daughter in the early 1990s.

At sentencing in the District Court, the applicant received a fixed term of 18 months for the offence involving the older child (count 1) and 7 years with a 5-year non-parole period for the offence involving the younger child (count 2). The two sentences were structured with a 6-month concurrence period, producing a total effective sentence of 8 years with a 6-year non-parole period.

The applicant sought leave to appeal on the single ground that the sentence for count 2 was manifestly excessive.

  • Whether the sentence imposed for count 2 was manifestly excessive having regard to the assessed objective seriousness of the offence.
  • Whether the sentencing judge's reasons contained an internal inconsistency between the stated assessment of objective seriousness and the undiscounted starting point used for count 2.
  • Whether the discount for the early guilty plea was properly reflected in the final sentence.

Decision

The Court of Criminal Appeal granted leave to appeal and upheld the appeal. Lonergan J, with whom Hoeben CJ at CL and Price J agreed, found that the sentence for count 2 was manifestly excessive.

The sentencing judge had assessed the objective criminality of count 2 as "just below the mid-range." However, the undiscounted starting point implied by the sentence was approximately 9 years and 4 months. Given a maximum penalty of 10 years, that starting point was irreconcilable with a finding of objective seriousness just below the mid-range. The Court identified this as an internal inconsistency in the sentencing reasons: the assessment of gravity and the arithmetic of the sentence could not be reconciled.

Price J specifically noted that, while the sentencing judge was entitled to give added weight to specific deterrence given the applicant's prior sexual offending and diagnosed paedophilic disorder, that did not justify a starting point so far in excess of what the objective gravity of the offence could support.

The Court accepted all of the sentencing judge's findings on subjective matters and the degree of accumulation between the two sentences. Applying a 25 per cent discount for the early guilty plea, the Court resentenced the applicant on count 2 to 5 years imprisonment with a 3-year non-parole period, commencing 26 November 2016.

Orders Made

  • Leave to appeal granted and the appeal against sentence upheld.
  • The sentence imposed in the District Court on 1 July 2016 for count 2 was quashed.
  • In lieu, the applicant was sentenced to imprisonment for 5 years, commencing 26 November 2016 and expiring 25 November 2021, with a non-parole period of 3 years commencing 26 November 2016 and expiring 25 November 2019.
  • The applicant will become eligible for release on parole upon the expiration of his non-parole period.

Key Takeaways

  • An internal inconsistency between a sentencing judge's expressed assessment of objective seriousness and the arithmetic starting point implied by the sentence can constitute a ground for appellate intervention, even where the final sentence might otherwise appear within a broad range.
  • A sentencing court's entitlement to give added weight to specific deterrence, including on account of prior similar offending and a diagnosed paedophilic disorder, does not permit a starting point that is disproportionate to the assessed objective gravity of the individual offence.
  • Where objective seriousness is assessed as just below the mid-range for an offence carrying a 10-year maximum, an undiscounted starting point of approximately 9 years and 4 months will be difficult to sustain on appeal.
  • The Court of Criminal Appeal preserved all of the primary sentencing judge's findings on subjective matters, including those relating to specific deterrence, and confined its intervention to the quantum error arising from the inconsistency in the reasoning.
  • An early guilty plea discount (here 25 per cent) must be visibly and correctly reflected in the final sentence, and a failure to apply it consistently with the stated starting point is a further basis for appellate correction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Huynh v R (2008) 188 A Crim R 287; [2008] NSWCCA 216
- Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Krivosic v R [2017] NSWCCA 167
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mills v R [2017] NSWCCA 87
- R v George (2004) 149 A Crim R 38; [2004] NSWCCA 247
- R v Morgan (1993) 70 A Crim R 368
- Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64