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33
Court of Criminal Appeal 2 May 2017

R v AA

[2017] NSWCCA 84

Sexual offences
CRIMINAL APPEAL CROWN APPEAL SEXUAL ASSAULTS UPON CHILDREN FIVE OFFENCES ERROR MADE OUT NO ERROR ESTABLISHED

Citation: R v AA [2017] NSWCCA 84
Court: NSW Court of Criminal Appeal
Date: 2 May 2017
Judge(s): Leeming JA, R A Hulme J, Beech-Jones J (Beech-Jones J delivered the principal judgment)

Background

The respondent (referred to as "AA" due to suppression obligations) pleaded guilty in the District Court to five serious sexual offences against his two young nieces, committed over a period of several years. The victims were aged between five and eight years old at the time of the offending. Because AA was a juvenile when some of the offences were committed, both he and the victims are subject to non-publication rules and are identified only by pseudonyms.

AA was sentenced in December 2016 to a total term of 6 years and 7 months imprisonment, with a combined non-parole period of 4 years. The individual sentences ranged from 14 months (for the two earliest offences, committed when AA was aged 15 to 16) to 5 years and 2 months (for the most serious offence, committed when AA was 19 and one of the victims was 8 years old).

The Crown appealed the sentences under s 5D of the Criminal Appeal Act 1912, contending that the sentencing judge made multiple legal errors and that the sentences were, either individually or in totality, manifestly inadequate.

  • Whether the sentencing judge erred in applying an "Ellis discount" (a discount for a guilty plea that spares victims from giving evidence, named after a line of case law) without complying with the procedural requirements of s 23(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge incorrectly assessed the objective seriousness of any of the five offences
  • Whether the sentencing judge erred in referring to the sentencing regime that would have applied to juveniles had the offending been discovered and prosecuted earlier
  • Whether the sentencing judge double-counted the respondent's youth as a mitigating factor
  • Whether the sentencing judge erred in his approach to the accumulation of sentences
  • Whether the individual sentences or the total sentence were manifestly inadequate

Decision

The Court found that the sentencing judge had erred in applying the Ellis discount without following the procedural steps required by s 23(2) of the Crimes (Sentencing Procedure) Act. That provision requires a court, before reducing a sentence on the basis of a guilty plea, to indicate the sentence it would otherwise have imposed. The failure to comply constituted a legal error. A further error was established in relation to the objective seriousness of one of the offences.

On the question of the juvenile sentencing regime, the Court found no error in the sentencing judge's decision to refer to how AA would have been sentenced had the offences been detected earlier. However, the sentencing judge had misstated the effect of the relevant provisions for children, which constituted a further (if limited) error. The Court found no error in relation to double-counting of youth or in the approach to accumulation of sentences.

Despite identifying errors, the Court applied the well-established principle from Janceski that a Crown appeal succeeds only if the total sentence, even if erroneously reached, was manifestly inadequate. The Court compared AA's sentences with comparable cases, including AAT v R and Jones v R, and acknowledged that the sentences were "undoubtedly very lenient." Nevertheless, the Court was not persuaded that the sentences were manifestly inadequate, either individually or in totality.

Because the Crown failed to clear the final and essential hurdle of demonstrating manifest inadequacy, the appeal was dismissed.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • A Crown appeal against sentence requires more than establishing legal error: the Crown must also demonstrate that the total sentence imposed was manifestly inadequate in the circumstances, even if it was reached through erroneous reasoning (applying Janceski).
  • Under s 23(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must indicate the sentence it would otherwise have imposed before applying any reduction for a guilty plea (the Ellis discount). Failing to do so constitutes a legal error.
  • Where an offender was a juvenile at the time of some offences but was prosecuted as an adult, a sentencing court may legitimately consider what sentence would have applied under the juvenile regime had the offences been detected earlier, but must accurately state the effect of those provisions.
  • In dismissing the appeal, the Court acknowledged that sentences can be "undoubtedly very lenient" without crossing the threshold of manifest inadequacy, confirming that this remains a high bar for Crown appeals.
  • Suppression obligations under the Crimes Act 1900 (s 578A) and the Children (Criminal Proceedings) Act 1987 (s 15A) applied because AA was a juvenile at the time of some of the offences, requiring anonymisation of all parties.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23(2), 32(1)
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Appeal and Review) Act 2001 (NSW)

Key Cases:
- House v The King [1936] HCA 40; 55 CLR 499 (standard for appellate interference with sentencing discretion)
- CMB v Attorney General for the State of NSW [2015] HCA 9; 256 CLR 346 (Crown appeal principles)
- R v Janceski [2005] NSWCCA 288 (Crown appeal must establish manifest inadequacy in totality)
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- AAT v R [2011] NSWCCA 17 (comparable sentencing case)
- Jones v R [2012] NSWCCA 262 (comparable sentencing case)
- JH v R [2017] NSWCCA 22
- Bell v R; Jelisavac v R [2009] NSWCCA 206