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8
Court of Criminal Appeal 3 December 2018

RL v R

[2018] NSWCCA 274

Sexual offences
CRIME APPEAL AGAINST SENTENCE DAUGHTERS APPEAL DISMISSED

Citation: RL v R [2018] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 3 December 2018
Judge(s): Macfarlan JA; Bellew and Wilson JJ

Background

The applicant pleaded guilty to six sexual assault offences against his two stepdaughters, V1 and V2, committed over a period spanning roughly 2004 to 2015. V1 was aged between seven and ten years at the time of the offences against her. V2 was aged between six and thirteen years at the time of the offences against her, and believed the applicant to be her biological father.

On 31 March 2017, the applicant was sentenced in the District Court. The total effective sentence was 19 years and seven months, with a total effective non-parole period of 13 years. Two additional offences were taken into account on a Form 1 (a procedural mechanism allowing a court to take related uncharged offences into account when sentencing, without recording a separate conviction).

The applicant sought leave to appeal his sentence on several grounds, contending that the sentencing judge had made errors in assessing objective seriousness, in applying the totality principle when accumulating sentences, and in imposing an allegedly excessive head sentence for Count 6.

  • Whether the sentencing judge erred in her assessment of the objective seriousness of particular offences
  • Whether the sentencing judge erred in partially accumulating each sentence by failing to properly consider the principle of totality
  • Whether the head sentence imposed for Count 6 was manifestly excessive
  • Whether error in the sentencing process should be inferred from the structure of the sentences
  • Whether the attachment of a Form 1 offence to Count 6 could explain the difference in the head sentence for that count compared with Count 5

Decision

Objective seriousness and totality. The Court found no error in the sentencing judge's assessment of the objective seriousness of the individual offences. The partial accumulation of sentences was consistent with the principle in Pearce v The Queen (1998) 194 CLR 610, which requires a court to impose a proper sentence for each offence while also giving effect to the totality principle. The Court found the sentencing judge had approached both tasks correctly.

Manifest excess in Count 6. Count 6, an aggravated sexual assault of V2 when she was 13 years old, carried a sentence of a seven-year non-parole period and a balance of term of six years and seven months. The applicant contended this was disproportionate when compared with Count 5, which attracted a non-parole period of six years and five months. The Court rejected this comparison as an appropriate basis for establishing manifest excess, noting that it risked ignoring the full range of sentencing principles the judge was required to apply simultaneously.

Role of the Form 1 offence. The Form 1 offence attached to Count 6 involved a separate penetrative assault on V2, also when she was 13. The Court emphasised the seriousness of that Form 1 conduct and rejected the submission that it warranted only a modest or even no increase in the sentence for Count 6. The Court confirmed that taking a Form 1 offence into account should produce a sentence materially longer than would otherwise have been imposed, consistent with the approach described in Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413.

Overall sentence. Across all counts, the non-parole period ratios ranged from approximately 51.5% to 72.2%. The Court was satisfied that the overall sentence, and the individual sentences, fell within the available range given the gravity of the conduct. No error warranting intervention was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that comparing individual sentences across counts is an insufficient basis for establishing manifest excess when a sentencing judge has been required to give effect to multiple, overlapping sentencing principles simultaneously.
  • A Form 1 offence taken into account at sentencing must produce a sentence meaningfully longer than would have been imposed absent that conduct; a "very modest increment" or no increase at all is inconsistent with principle.
  • Where a sentencing judge adjusts an individual sentence within the permissible range in order to satisfy the ratio requirements under s 44 of the Crimes (Sentencing Procedure) Act 1999 while also observing totality and Pearce, that adjustment does not constitute error.
  • No error is established merely because the head sentence for one count differs noticeably from the head sentence for a comparable count, where that difference is explicable by the attachment of a Form 1 offence.
  • The principle in Pearce v The Queen requires both a proper sentence for each offence and attention to the total effective sentence; these are related but distinct obligations that a sentencing judge must satisfy at the same time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 61M(2), 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33, 44(2)

Cases
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- R v Thalari 75 NSWLR 307; [2009] NSWCCA 170
- MRM v R [2015] NSWCCA 195
- AB v R [2013] NSWCCA 273
- Franklin v R [2013] NSWCCA 122
- Shortland v R [2013] NSWCCA 4
- Zahorsky v R [2013] NSWCCA 268
- R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185
- R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326
- R v XX [2009] NSWCCA 115; (2009) 159 A Crim R 38
- R v Morgan (1993) 70 A Crim R 368
- R v Vougdis (1989) 41 A Crim R 125