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Court of Criminal Appeal 24 March 2017

R v Alcazar

[2017] NSWCCA 51

Sexual offences
CRIMINAL LAW APPEAL CROWN APPEAL APPEAL AGAINST SENTENCE CONSENT IN RELATION TO SEXUAL ASSAULT APPEAL UPHELD

Citation: R v Alcazar [2017] NSWCCA 51
Court: NSW Court of Criminal Appeal
Date: 24 March 2017
Judges: Hoeben CJ at CL, Schmidt J, Wilson J

Background

The respondent pleaded guilty to three counts of aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW), committed against an 18-year-old victim in June 2015. The offences were committed in company with two other men, all acting simultaneously in a small backyard bathroom while the victim was heavily intoxicated and vomiting. The aggravating factor in each count was that the offences were committed in company, under s 61J(2)(c). Each offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

The respondent received a combined 50% discount on sentence, reflecting his guilty plea and an undertaking to assist authorities in prosecuting his co-offenders. In November 2016, the District Court imposed an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years.

The Director of Public Prosecutions appealed that sentence as manifestly inadequate. The Crown identified four specific errors in the sentencing judge's approach, including the assessment of objective criminality, the treatment of general deterrence, and alleged double-counting in the finding of special circumstances.

  • Whether the sentencing judge erred by failing to identify which paragraph of s 61HA(3) of the Crimes Act established the basis for the respondent's knowledge that the victim did not consent
  • Whether the judge's assessment of the objective seriousness of each count was correct
  • Whether the judge adequately identified and reflected the need for general deterrence
  • Whether the finding of special circumstances was properly reasoned and free from double-counting
  • Whether, if error was established, the Court's residual discretion to decline interference on a Crown appeal should be exercised
  • What sentence should be imposed on resentencing

Decision

The Court of Criminal Appeal unanimously found that the sentence was manifestly inadequate and that the sentencing judge had fallen into error. Schmidt J (with whom Hoeben CJ at CL and Wilson J agreed) identified multiple errors in the judge's approach, including an incorrect assessment of objective criminality for each count and an insufficient engagement with general deterrence. Notably, the sentencing judge's own observation that the sentence would have been inadequate for an older offender indicated an erroneous approach to the role of youth in mitigation.

The Court confirmed that youth, while a relevant mitigating factor, does not reduce a sentence to a level that fails to reflect the objective gravity of the offending. The three offences were serious: they were committed simultaneously by three men against a single incapacitated victim, and involved multiple forms of sexual penetration. The Court found the indicative sentence for the principal count (penile/vaginal penetration) warranted a higher starting point than the judge applied.

On the question of residual discretion, the Court declined to exercise it in the respondent's favour. The primary purpose of a Crown appeal is to lay down sentencing principles for guidance, and the errors identified were sufficiently significant to warrant interference.

The Court resentenced the respondent to an aggregate term of 6 years and 6 months, maintaining the 50% discount for plea and assistance (including 15% for future assistance) that the original judge had applied and which was not challenged on appeal. The new sentence was described as significantly greater than the original, but not crushing given all circumstances.

Orders Made

  • The appeal was upheld
  • The original sentence was set aside
  • The respondent was resentenced to an aggregate term of 6 years and 6 months imprisonment, commencing 29 June 2015 and expiring 28 December 2021, with a non-parole period of 4 years and 3 months (eligible for parole from 28 September 2019)

Key Takeaways

  • A sentencing judge's own acknowledgement that a sentence would have been inadequate for an older offender signals that youth has been given disproportionate weight, and can itself demonstrate error on a Crown appeal.
  • Under the Crimes Act 1900 (NSW), aggravated sexual assault in company carries a standard non-parole period of 10 years; sentences significantly below that range require clear and properly reasoned justification, particularly where multiple counts of simultaneous offending are involved.
  • The Court of Criminal Appeal confirmed that general deterrence requires specific identification and proper reflection in sentences for serious sexual offences, and a failure to engage adequately with that purpose constitutes a sentencing error.
  • In upholding the Crown appeal, the Court declined to exercise the residual discretion to refrain from interfering, reinforcing that the primary function of Crown appeals is to establish and maintain appropriate sentencing standards.
  • A substantial discount for guilty plea and undertaking to assist authorities (here 50%, including 15% for future assistance) may be preserved on resentencing where neither party challenges it, but its application does not insulate the underlying indicative sentences from appellate review.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61HA(3)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- House v The King (1936) 55 CLR 499 (test for appellate interference with discretionary decisions)
- Green v The Queen (2011) 244 CLR 462 (purpose of Crown appeals)
- CMB v Attorney General for NSW (2015) 256 CLR 346 (purpose of Crown appeals)
- Dinsdale v The Queen (2000) 202 CLR 321 (latent and patent error)
- Bugmy v The Queen (2013) 249 CLR 571 (sentencing and subjective circumstances)
- Muldrock v The Queen (2011) 244 CLR 120 (standard non-parole periods)
- Markarian v The Queen (2005) 228 CLR 357 (sentencing methodology)
- Mill v The Queen (1988) 166 CLR 59 (discount for assistance)
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Ibbs v The Queen (1987) 163 CLR 447
- Power v The Queen (1974) 131 CLR 623
- Regina v AEM Snr; Regina v KEM; Regina v MM [2002] NSWCCA 58
- KAB v R [2015] NSWCCA 55
- Collier v R [2012] NSWCCA 213