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Court of Criminal Appeal 20 April 2017

Aloniu v R

[2017] NSWCCA 74

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE WHETHER PROCEDURAL FAIRNESS DENIED FAILURE TO GIVE NOTICE TO THE APPLICANT RESENTENCING DISCRETION

Citation: Aloniu v R [2017] NSWCCA 74
Court: Court of Criminal Appeal, New South Wales
Date: 20 April 2017
Judge(s): Hoeben CJ at CL, Walton J, Price J

Background

The applicant pleaded guilty in the Sydney District Court to three counts of aggravated sexual intercourse without consent under s 61J(1) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that the complainant, a 15-year-old girl who was his wife's niece, was under his authority at the time. The offences, involving digital penetration, cunnilingus, and penile/vaginal intercourse, occurred during a single episode while the complainant was living in the applicant's home and his wife was overseas.

The sentencing judge imposed an aggregate non-parole period of 5 years and 9 months, with an additional term of 3 years and 2 months. During sentencing, the judge made a finding, beyond reasonable doubt, that the applicant knew the complainant was underage. That finding formed part of the judge's reasoning for rejecting the applicant's claim of remorse.

The applicant sought leave to appeal against his sentence, arguing principally that the sentencing judge denied him procedural fairness by treating his knowledge of the complainant's age as an aggravating factor without giving him adequate notice.

  • Whether the sentencing judge denied the applicant procedural fairness by relying on his knowledge of the complainant's age as an aggravating factor without adequate notice
  • Whether, if procedural fairness was denied, the finding of knowledge was nonetheless supported by the evidence to the criminal standard
  • Whether the sentencing judge erred in rejecting the applicant's claimed remorse as a mitigating factor
  • Whether, if any error was established, a lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912 (NSW)

Decision

On procedural fairness and the notice issue: Walton J found that the sentencing judge did treat the applicant's knowledge of the complainant's age as an aggravating factor at sentence, without having given the applicant proper notice that this would occur. This amounted to a denial of procedural fairness and constituted an error of principle. Price J disagreed with that characterisation, taking the view that the judge's finding was directed at the question of remorse rather than aggravation, and therefore no procedural fairness error arose.

On the sufficiency of the evidence for the knowledge finding: Despite the procedural fairness error identified by Walton J, the Court considered whether the circumstantial evidence nonetheless supported the finding of knowledge to the criminal standard. The Court concluded it did. The applicant had met the complainant as a young child, observed her enrol in school at the country location, and was aware she was younger than other family members. This was sufficient to support the inference that he knew she was 15 at the time of the offences, leaving no room for reasonable doubt.

On remorse: Both Walton J and Price J agreed that the sentencing judge was entitled to reject the applicant's claimed remorse as a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The judge found that any apparent regret was not directed at the offending conduct itself, and the finding of knowledge of the complainant's age supported the conclusion that the applicant had not genuinely accepted responsibility.

On resentencing: Even accepting that an error of principle had occurred on the procedural fairness question, the Court exercised its discretion under s 6(3) of the Criminal Appeal Act 1912 and declined to impose a lesser sentence. The circumstantial evidence fully supported the knowledge finding, and no lesser sentence was warranted on a re-exercise of the sentencing discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where a sentencing court proposes to treat a specific factual matter as an aggravating factor, the requirement to give the offender adequate notice before doing so is a well-established procedural fairness obligation, even if the parties were broadly aware of the factual context.
  • Sufficient circumstantial evidence can support a finding of knowledge to the criminal standard at sentence, even where the offender disputes that knowledge, provided the evidence is capable of excluding reasonable doubt.
  • A genuine claim of remorse under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires an offender to demonstrate actual acceptance of responsibility for the offending conduct, not merely regret about other consequences.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal retains a discretion to decline to impose a lesser sentence even where an error of principle at first instance is established, where the evidence and all relevant factors do not warrant a reduction.
  • In dismissing the appeal, the Court confirmed that procedural fairness errors at sentence do not automatically lead to a reduced sentence where the underlying factual finding is independently supported by the evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61Q(3), 66C(3)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(i), 53A

Cases:
- Currie v R [2013] NSWCCA 267
- Franklin v R [2016] NSWCCA 319
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
- MRW v R [2011] NSWCCA 260
- R v Stokes (2008) 185 A Crim R 74; [2008] NSWCCA 123
- R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
- Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107