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Court of Criminal Appeal 5 May 2017

Mills v R

[2017] NSWCCA 87

Sexual offences
CRIMINAL LAW SENTENCE APPEAL SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE PRESENT CASE NOT WORST CATEGORY SENTENCE UNREASONABLE

Citation: Mills v R [2017] NSWCCA 87
Court: Court of Criminal Appeal
Date: 5 May 2017
Judges: Leeming JA at [1]; R A Hulme J at [5]; Beech-Jones J at [81]

Background

The applicant pleaded guilty in the District Court to one count of persistent sexual abuse of a child under section 66EA of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years' imprisonment. The victim was his daughter, who was aged 11 when the offending began and 14 when it ended. The abuse involved repeated penile-vaginal intercourse occurring on a regular basis over approximately three years, during which the applicant also suppressed an early complaint by his daughter through manipulation and pressure.

Judge Syme imposed a sentence of 16 years and 6 months with a non-parole period of 12 years and 4 months. That sentence reflected a starting point of 22 years, reduced by 25 per cent for the applicant's early guilty plea. The sentencing judge characterised the offence as falling within the "high range" of objective seriousness.

The applicant sought leave to appeal on two grounds: that the sentencing judge erred in finding the offence fell in the high range, and that the resulting sentence was manifestly excessive.

Legal Issues

  • Whether the sentencing judge erred by characterising the objective seriousness of the section 66EA offence as falling within the "high range"
  • Whether the sentence of 16 years and 6 months (reflecting a 22-year starting point) was manifestly excessive

Decision

Ground 1: Objective seriousness characterised as high range

The Court of Criminal Appeal rejected this ground. The assessment of objective seriousness is a matter of discretionary evaluation for the primary judge, reviewable only on the principles in House v The King, and the question was whether the finding was open to her (at [50]). R A Hulme J noted that the "high range" description is inherently imprecise, sitting somewhere between mid-range and the worst case category, and that little may separate the top of the mid-range from just within the high range (at [54]-[55]).

Leeming JA observed that section 66EA was intended to address offending at the lower level, with most ingredient offences carrying lesser penalties than aggravated sexual assault under section 61J (at [2]). Nonetheless, taking into account the regularity of the intercourse, the victim's age, the father-daughter relationship, the suppression of the initial complaint, and the serious physical and psychological harm suffered by the victim, the Court held the finding of high-range seriousness was open to the sentencing judge (at [2], [56]).

The Court also confirmed that pointing to absent aggravating circumstances does not render an offence less serious than it actually is. As Hulme J stated, applying Filippou v The Queen and Mammone v R: identifying factors which, if present, would have made the offence worse does not establish mitigation (at [57]).

Ground 2: Manifest excess

The Court upheld this ground. The undiscounted starting point of 22 years, against a maximum of 25 years, was commensurate only with an offence in the worst category of cases (at [3], [71]). By reference to Hitchen v R, in which the section 66EA offence involved abuse commencing when the child was aged seven, 12 occasions of intercourse across multiple types, and recording of some offences on video, the Court illustrated what a worst-category case looks like. The present case, while grave, was not at that level or close to it (at [70]-[71]).

The Court assessed the offence as above the mid-range but not warranting the maximum penalty or a sentence close to it (at [72]). The applicant's mitigating factors were thin: he had no relevant prior convictions and had pleaded guilty early, but no remorse was accepted as a mitigating factor (as it had not been advanced before the primary judge), and the primary judge's finding of guarded rehabilitation prospects was not disturbed (at [65], [75], [78]). The 25 per cent reduction for the early plea was maintained (at [78]), and no special circumstances were found to justify altering the statutory proportion of the non-parole period (at [79]).

Orders Made

  • Leave to appeal allowed and the appeal against sentence upheld.
  • The sentence imposed in the District Court on 11 December 2015 was quashed.
  • The applicant was resentenced to imprisonment comprising a non-parole period of 10 years with a balance of term of 3 years 6 months, dating from 4 December 2014, with eligibility for parole on 3 December 2024.

Key Takeaways

  • Characterising objective seriousness as "high range" for a section 66EA offence is an exercise of judicial discretion; the appellate court's task is to determine whether the finding was open on the facts, not to substitute its own assessment (at [50]).

  • Absent aggravating circumstances do not operate as mitigating factors. The Court of Criminal Appeal reaffirmed that identifying factors which would have made an offence worse if present does not reduce the seriousness of the offending as it actually occurred (at [57]).

  • A sentencing starting point very close to the statutory maximum signals that the case is being treated as one of the worst category. Where the facts do not support that characterisation, the resulting sentence will be manifestly excessive, even if the offending is concededly grave (at [71]).

  • Section 66EA encompasses a wide range of underlying sexual offences, many of which carry lower maximum penalties than aggravated sexual assault under section 61J. This contextual range is relevant when assessing where particular conduct sits within the section 66EA sentencing spectrum (at [2], [41]-[43]).

  • In a resentencing exercise, remorse expressed in an affidavit filed on appeal will not be accepted as a mitigating factor under section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 where it was not advanced as such before the sentencing court (at [75]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW) s 15A
- Crimes Act 1900 (NSW) ss 61J, 61JA, 66A(2), 66EA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(3), 44

Cases
- Baines v R [2016] NSWCCA 132
- Barbaro v R; Zirilli v R [2014] HCA 2; 253 CLR 58
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
- Filippou v The Queen [2015] HCA 29; 256 CLR 47
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520
- Hitchen v R [2010] NSWCCA 77
- House v The King [1936] HCA 40; 55 CLR 499
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Mammone v R [2013] NSWCCA 95
- Mulato v R [2006] NSWCCA 282
- R v JCW [2000] NSWCCA 209; 112 A Crim R 466
- Saddler v R [2009] NSWCCA 83; 194 A Crim R 452
- The Queen v Kilic [2016] HCA 48