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Court of Criminal Appeal 22 June 2018

R v Neville

[2018] NSWCCA 125

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE ADEQUACY OF SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE APPEAL ALLOWED AND OFFENDER RESENTENCED

Citation: R v Neville [2018] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 22 June 2018
Judges: Beazley P, Button and Fagan JJ

Background

The respondent (identified by a pseudonym to protect the complainants) was convicted after a multi-week trial of three counts of sexual intercourse with a child under 10 years and two counts of using a child for pornographic purposes, contrary to the Crimes Act 1900 (NSW). He had separately pleaded guilty to one count of possession of child pornography. The victims were his own daughters, aged between 18 months and 4 years at the time of the offending.

The offending spanned several years. It included anal penetration of a 3-to-4-year-old child on two separate occasions, placing his penis in that child's mouth, photographing her naked, and taking seven close-up photographs of his infant daughter's genitalia. A computer in his possession also contained 12 images depicting pre-pubescent girls being subjected to penile-anal intercourse by an adult male.

In the District Court, Judge Ingram SC imposed an aggregate sentence of 13 years imprisonment with a non-parole period of 8 years and 6 months. The Crown appealed on the sole ground that the sentence was manifestly inadequate.

  • Whether the aggregate sentence of 13 years was manifestly inadequate given the nature, number, and circumstances of the offences
  • Whether the indicative sentences nominated for the most serious individual counts were individually insufficient
  • Whether the finding of "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which reduced the non-parole period ratio to 65% of the head sentence, was warranted
  • Whether the residual discretion to decline interference with the sentence should be exercised despite a finding of manifest inadequacy

Decision

The Court of Criminal Appeal found the aggregate sentence manifestly inadequate, driven primarily by the insufficiency of the indicative sentences for the most serious counts. The respondent showed no remorse and maintained his innocence of the counts on which he was tried. Even in relation to the possession charge to which he pleaded guilty, he asserted the material was held only to expose those who distributed it, a claim the sentencing judge had found difficult to accept.

The Court noted that the sentencing judge had limited subjective material before him. Claimed physical and verbal abuse by adoptive parents was not established on the balance of probabilities. While the respondent suffered from several health conditions, including bipolar affective disorder, lower back pain, and a respiratory finding requiring monitoring, the Court found these did not sufficiently explain or mitigate the moral culpability involved. The respondent's prior conviction in 2013 for possessing child abuse material, for which he received a bond, was a relevant aggravating feature.

The Court acknowledged the Crown's acceptance of the special circumstances finding, which resulted in a non-parole period of 65% of the head sentence rather than the standard 75%. However, the Court expressed misgivings about whether the respondent's circumstances truly met the threshold for "special circumstances" under s 44. It nonetheless accepted the Crown's concession and maintained the 65% ratio in resentencing.

On the question of residual discretion, the Court declined to refrain from intervening. The offending involved the most vulnerable victims imaginable, was of a kind Parliament had marked with high maximum penalties, and the aggregate sentence did not adequately serve the sentencing purpose of denunciation under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Orders Made

  • The appeal was allowed.
  • The aggregate sentence imposed by Judge Ingram SC on 16 February 2018 was quashed.
  • In substitution, the respondent was sentenced to an aggregate term of imprisonment comprising a non-parole period of 10 years commencing 4 May 2017 and expiring 3 May 2027, and a balance of term of 5 years commencing 4 May 2027 and expiring 3 May 2032.

Key Takeaways

  • The Court of Criminal Appeal confirmed that manifest inadequacy in the indicative sentences for the most serious individual counts will infect the adequacy of the aggregate sentence as a whole.
  • Where an offender shows no remorse, maintains innocence after conviction at trial, and offers implausible explanations even for a guilty plea, these factors weigh heavily against mitigation in sentencing.
  • A prior conviction for possession of child abuse material, even where it resulted in a non-custodial outcome, remains an aggravating feature relevant to subsequent sentencing for similar and related offending.
  • The Court expressed reservations about whether physical health conditions and the general difficulties of custody are sufficient, without more, to establish "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), though it accepted the Crown's concession on that point in this instance.
  • Under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the purpose of denunciation carries particular weight in sentencing for serious sexual offences against very young children, and a sentence that fails to reflect that purpose adequately may be set aside as manifestly inadequate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 91G(1)(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 44

Cases:
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54