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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: NSW Court of Criminal Appeal
Date: 5 May 2017
Judge(s): 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 contrary to s 66EA(1) of the Crimes Act 1900 (NSW). The victim was his natural daughter, who was aged 11 when the offending began and 14 when it ended on the day of the applicant's arrest in December 2014. The offending involved repeated acts of penile-vaginal intercourse and digital penetration carried out in the family home over several years.

After the victim made an early disclosure to family members, the applicant's conduct contributed to the complaint being retracted. The assaults continued after that retraction. The District Court imposed a sentence of 16 years and 6 months imprisonment with a non-parole period of 12 years and 4 months, reflecting a 25 per cent reduction for the applicant's early guilty plea from an undiscounted starting point of 22 years.

The applicant sought leave to appeal on two grounds: first, that the sentencing judge wrongly assessed the objective seriousness of the offending as being in the "high range" for the offence; and second, that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in characterising the objective seriousness of the offending as being at the "high range" for an offence under s 66EA of the Crimes Act 1900 (NSW).
  • Whether the sentence of 16 years and 6 months imprisonment (with a starting point of 22 years before the plea discount) was manifestly excessive in the circumstances.

Decision

The Court of Criminal Appeal dismissed ground one unanimously. R A Hulme J, with whom the other judges agreed, found that the high range assessment was open to the sentencing judge. The court noted that an absence of certain aggravating factors does not of itself operate to mitigate the seriousness of an offence; the offending comprised repeated aggravated sexual assaults on a young child by her father, who held a position of authority over her. Leeming JA observed that s 66EA was designed partly to capture offending at a lower level than the most serious individual offences, which made the high range finding all the more defensible given the gravity of the specific conduct involved here.

On ground two, however, the court allowed the appeal. The maximum penalty for the offence is 25 years imprisonment. The undiscounted starting point of 22 years sat just 3 years below the maximum, a level the court found was commensurate only with an offence in the very worst category. The court accepted that the offending was extremely serious, but concluded this case did not reach that threshold. The near-maximum starting point was therefore unreasonable and the sentence was manifestly excessive.

The Court proceeded to resentence the applicant. It declined to revisit the 25 per cent guilty plea discount or any of the primary judge's subjective findings. The court also declined to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to alter the standard ratio between the non-parole period and the balance of term, concluding the ordinary statutory proportions were adequate.

Orders Made

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

Key Takeaways

  • A sentencing judge's assessment of objective seriousness as "high range" for a s 66EA offence is not undermined simply because particular statutory aggravating factors are absent; the absence of aggravating circumstances does not itself constitute a mitigating factor.
  • Section 66EA of the Crimes Act 1900 (NSW) carries a maximum of 25 years imprisonment, but a starting point approaching that maximum is only appropriate for offending that falls within the worst category of cases for the offence.
  • Where the undiscounted starting point is close to the maximum penalty, an appellate court will scrutinise whether the sentencing discretion has been properly exercised, particularly if the case does not genuinely represent the worst class of offending.
  • No error was established in the District Court's approach to subjective matters, including the 25 per cent reduction for the early guilty plea, and those findings were adopted without alteration on resentencing.
  • The Court of Criminal Appeal declined to find special circumstances to reduce the statutory non-parole period proportion, concluding that the standard parole period was sufficient to facilitate supervised reintegration after a lengthy custodial term.

Legislation and Cases Referenced

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

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