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14
Court of Criminal Appeal 10 May 2017

R v XX

[2017] NSWCCA 90

Also reported as (2017) 266 A Crim R 132
Sexual offencesDomestic & family violence
SENTENCING CROWN APPEAL RESPONDENT SEXUALLY ABUSED HIS 4 YEAR OLD DAUGHTER THREE OFFENCES

Citation: R v XX [2017] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 10 May 2017
Judges: Bathurst CJ, R A Hulme J, Beech-Jones J (unanimous)

Background

The respondent (referred to as "XX" under suppression orders) pleaded guilty in the District Court to three offences of child sexual abuse committed against his four-year-old daughter ("YY") between July 2013 and May 2014. The offences included sexual intercourse with a child under 10, aggravated indecent assault, and an aggravated act of indecency. All three offences involved XX entering YY's bedroom while she was asleep.

The District Court sentenced XX to an aggregate term of 7 years imprisonment with a non-parole period of 4 years and 6 months. That sentence incorporated, among other adjustments, a 15% discount reflecting assistance XX had provided to prosecuting authorities approximately six years earlier in relation to a separate conspiracy to murder investigation. XX had received a financial reward for that assistance at the time.

The Crown appealed on the basis that the sentence was manifestly inadequate, raising specific grounds concerning the discount for prior assistance, the assessment of objective seriousness of one offence, the failure to find an aggravating breach of trust, and the relationship between the indicative sentences and the aggregate sentence.

  • Whether the assistance XX provided to authorities years earlier, in relation to an entirely unrelated offence, fell within section 23 of the Crimes (Sentencing Procedure) Act 1999, and if so, whether the sentencing judge erred in applying a 15% discount for it
  • Whether the sentencing judge erred in characterising the objective seriousness of the first offence
  • Whether the sentencing judge erred in failing to find that the first offence was aggravated by an abuse of a position of trust or authority under section 21A(2)(k)
  • Whether the aggregate sentence was manifestly inadequate
  • Whether, if error was established, the Court of Criminal Appeal's residual discretion not to intervene should nonetheless be exercised

Decision

Discount for assistance: The Court accepted that XX's prior assistance to authorities fell within the scope of section 23(1) of the Sentencing Act, which applies to assistance provided in relation to offences generally rather than only the offence being sentenced. However, the Court held that the sentencing judge erred by failing to consider the complete absence of any connection between the assistance provided and the offences before the court. The Court also noted that XX had already received a financial reward for that assistance. Taking these factors together, the Court found the 15% discount was unreasonable and that no discount for assistance should have been granted.

Objective seriousness: The Court did not find error in the sentencing judge's characterisation of the objective seriousness of the first offence. Although the conduct was serious, the sentencing judge's assessment was within the available range.

Breach of trust: The Court upheld the Crown's complaint that the sentencing judge erred in refusing to apply the section 21A(2)(k) aggravating factor (abuse of a position of trust or authority) to the first offence. The sentencing judge had declined to apply it because the charge already included "under authority" as a circumstance of aggravation. The Court of Criminal Appeal held that the concepts of "under authority" and "abuse of a position of trust" are distinct and can operate concurrently. The sentencing judge was required to consider both.

Manifest inadequacy and resentencing: The Court found the aggregate sentence was manifestly inadequate, principally because of the unwarranted discount for assistance and an inconsistency between the indicative sentences and the aggregate term. The residual discretion not to intervene was not exercised, and the Court resentenced XX to an aggregate term of 9 years imprisonment with a non-parole period of 6 years, commencing 24 July 2015.

Orders Made

  • Appeal allowed
  • Aggregate sentence imposed by the District Court (28 October 2016, as amended 29 November 2016) set aside
  • In lieu thereof:
  • Aggregate sentence of 9 years imprisonment imposed, commencing 24 July 2015 and expiring 23 July 2024
  • Non-parole period of 6 years set pursuant to section 44(2A) of the Sentencing Act
  • XX eligible to be released on parole on 23 July 2021

Key Takeaways

  • Under section 23 of the Crimes (Sentencing Procedure) Act 1999, a sentencing discount for assistance to authorities may apply even where the assistance related to a different offence entirely, but the complete absence of any connection between the assistance and the current offending is a material consideration that a sentencing judge must address.
  • Where an offender has already received a financial reward for prior assistance to authorities, that fact is directly relevant to whether any further sentencing discount is warranted under section 23.
  • The aggravating circumstance of being "under the authority" of an offender (as an element of a charge under former section 66A) does not automatically exhaust or subsume the separate aggravating factor of "abuse of a position of trust or authority" under section 21A(2)(k) of the Sentencing Act. Both can apply simultaneously.
  • In a Crown appeal, establishing sentencing error is necessary but not sufficient: the Crown must also demonstrate that the total sentence, even if reached in error, was manifestly inadequate, and must negate any basis for exercising the residual discretion not to intervene.
  • The Court of Criminal Appeal resentenced XX to 9 years imprisonment (non-parole period 6 years), an increase of 2 years in the head sentence and 18 months in the non-parole period, after finding the original sentence manifestly inadequate and declining to exercise its residual discretion to refrain from interference.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly ss 21A, 23, 43, 44, 53A, 54B
- Crimes Act 1900 (NSW), ss 61M, 61O, 66A, 578A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW)
- Interpretation Act 1987 (NSW)

Key Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- CMB v Attorney General for the State of New South Wales [2015] HCA 9; 256 CLR 346
- R v Janceski [2005] NSWCCA 288
- R v Hernando [2002] NSWCCA 489; 136 A Crim R 451
- R v DH; R v AH [2014] NSWCCA 326
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
- RJT v R [2012] NSWCCA 280; 218 A Crim R 490
- PD v R [2012] NSWCCA 242
- R v Cartwright (1989) 17 NSWLR 243