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25
Court of Criminal Appeal 13 December 2017

MC v R

[2017] NSWCCA 316

Also reported as (2017) 271 A Crim R 83
Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE HISTORICAL SEXUAL OFFENCES SUBSTANTIAL DELAY WHERE PATTERNS OF SENTENCING CHANGED CORRECT APPROACH TO SENTENCING

Citation: MC v R [2017] NSWCCA 316
Court: NSW Court of Criminal Appeal
Date: 13 December 2017
Judges: Simpson JA, Rothman J, Hamill J (judgment delivered by Hamill J)

Background

The applicant pleaded guilty in the Penrith District Court to seven offences of indecent and sexual assault committed against his two daughters when they were children. The offending occurred between approximately 1972 and 1981, spanning a period when the family lived in regional New South Wales and later Sydney. The sentencing judge imposed an aggregate sentence of ten years' imprisonment with a non-parole period of five years.

The substantial delay between the offending and prosecution created significant complexity. The legislative provisions under which the applicant was charged had since been repealed or amended, maximum penalties had increased markedly, and sentencing patterns for offences of this kind had shifted considerably over the intervening decades.

The applicant sought leave to appeal against sentence, arguing that the sentencing judge had misapplied the relevant principles in several respects.

  • Whether the sentencing judge incorrectly applied the principle of general deterrence in the context of historical offending
  • Whether the sentencing judge erred by relying on his own personal memory of sentencing practices from the relevant era, rather than evidence placed before the court
  • Whether the aggregate sentence was manifestly excessive, having regard to the head sentence and the non-parole period

Decision

On the question of general deterrence, the Court rejected the submission that the sentencing judge had misapplied this principle. It is accepted in New South Wales that an offender being sentenced for historical offences must be sentenced by reference to the maximum penalties and sentencing patterns prevailing at the time of the offending. Within that framework, however, general deterrence remains a legitimate sentencing consideration, and the Court found no error in the way the judge approached it.

The second ground raised a more significant question: whether a sentencing judge can draw on personal judicial memory of historical sentencing practices, rather than evidence adduced at the hearing. The Court acknowledged this was an important issue worthy of careful analysis. Ultimately, the Court concluded that, on the facts, any reliance on judicial memory did not produce appellable error, particularly given that the sentence imposed was not shown to exceed what was appropriate by reference to the historical materials that had been placed before the court.

On manifest excess, the Court acknowledged the sentence was a stern one given the applicant's age and subjective circumstances. However, it found the sentence fell within the range available to the sentencing judge when measured against comparable historical cases and the applicable maximum penalties. The offending involved serious, repeated abuse of two daughters over nearly a decade, which supported the sentence imposed.

All three grounds of appeal were rejected. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In NSW, an offender charged with historical sexual offences must be sentenced by reference to the maximum penalties and sentencing patterns that prevailed at the time of the offending, not those that apply today. This principle was accepted as settled, though the Court noted its precise scope remains complex.

  • General deterrence is not excluded as a sentencing consideration simply because the offences are historical. The sentencing court may still take it into account within the constraints of period-appropriate sentencing.

  • The appropriateness of a sentencing judge relying on personal judicial memory of historical sentencing practices, as opposed to evidence adduced in court, was identified as a genuinely important legal issue. The Court stopped short of resolving it definitively, finding no appellable error on the facts.

  • A stern aggregate sentence across multiple counts of serious child sexual abuse was not manifestly excessive where the individual offences were grave, the offending was prolonged and involved a serious breach of parental trust, and comparable historical cases supported the range applied.

  • Increases in maximum penalties and community attitudes over several decades do not automatically render a sentence imposed for historical offending excessive, provided the sentencing court has correctly calibrated its approach to the period in which the offences occurred.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 71, 73, 76
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 53A, 54B

Cases:
- AJB v R (2007) 169 A Crim R 32
- Attorney General (NSW) v Perpetual Trustee Co Limited (1952) 85 CLR 237
- Denham v R [2016] NSWCCA 309
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Featherstone v R 183 A Crim R 540; [2008] NSWCCA 71
- Henderson v R [2016] NSWCCA 8
- JM v R [2014] NSWCCA 297
- Magnuson v R [2013] NSWCCA 50
- MPB v R (2013) 234 A Crim R 576; [2013] NSWCCA 213
- Mulato v R [2006] NSWCCA 282
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- PH v R [2009] NSWCCA 161
- PWB v R [2011] NSWCCA 84
- R v AGR, unreported, CCA (NSW), 24 July 1998
- R v Clarke, unreported, CCA (NSW), 18 February 1983
- R v ED, unreported, CCA (NSW), 22 November 1996
- R v James Henry Sargeant (1974) 60 Cr App R 74
- R v Knight (2005) 155 A Crim R 252
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129