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12
Court of Criminal Appeal 7 December 2018

GG v R

[2018] NSWCCA 280

Sexual offences
CRIMINAL LAW ERROR CONCEDED OBJECTIVE SERIOUSNESS OF THE OFFENCES SPECIAL CIRCUMSTANCES

Citation: GG v R [2018] NSWCCA 280
Court: NSW Court of Criminal Appeal
Date: 7 December 2018
Judge(s): Payne JA, Schmidt J, Fagan J

Background

The applicant, the stepfather of a 15-year-old girl, pleaded guilty in the District Court to two counts of aggravated sexual intercourse with a child aged between 14 and 16 under authority, one count of producing child abuse material, and one count of possessing child abuse material. A further offence of grooming a child for unlawful sexual activity was taken into account on a Form 1. All offences were committed against his stepdaughter in 2015.

The District Court imposed an aggregate sentence of 7 years and 9 months imprisonment, with a non-parole period of 5 years, 9 months and 23 days, commencing from the date of arrest in March 2016. Discounts of 25% were applied for pleas on three of the four counts, and 10% for the fourth.

The applicant sought leave to appeal against the sentence on seven grounds, including that the sentencing judge had wrongly assessed objective seriousness, failed to give proper weight to his subjective circumstances and good character, erred in treating the Form 1 offence, improperly considered the victim impact statement, failed to find special circumstances, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to take into account the applicable standard non-parole periods for the two offences under s 66C(4) of the Crimes Act 1900 (NSW)
  • Whether error in omitting indicative non-parole periods under s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) invalidated the sentence
  • How the correct objective seriousness of each offence should be assessed on re-sentencing
  • Whether the sentencing judge engaged in impermissible "double counting" by using the grooming conduct (the Form 1 offence) as context for the principal offences
  • How a Form 1 offence properly bears on the sentence for the principal offence to which it relates
  • Whether the applicant's good character and prior good record warranted further leniency
  • Whether the victim impact statement was considered appropriately
  • Whether special circumstances existed to justify a different non-parole period

Decision

Ground 7: Conceded error on standard non-parole periods

Both parties accepted that the sentencing judge had been incorrectly informed that no standard non-parole period applied to the two s 66C(4) offences. Because the standard non-parole period of 5 years must form part of the "instinctive synthesis" of all sentencing factors (following Markarian v The Queen), the judge's failure to apply it was an error. Leave to appeal was therefore granted. The omission of indicative non-parole periods in breach of s 54B(4) was also noted, though the Court confirmed that provision made clear this error did not invalidate the sentence.

Re-sentencing: objective seriousness of the offences

Having found error, the Court of Criminal Appeal exercised the sentencing discretion afresh, without treating the original sentence as a guide. Schmidt J (with whom Payne JA and Fagan J agreed) assessed count 1 as falling just below the mid-range of objective seriousness, and count 2 as above the mid-range given the violent nature of the sexual assault. Count 3 (producing child abuse material through 249 video files captured via hidden cameras) was placed at the mid-range, given the significant planning involved. Count 4 (possession of child abuse material) fell below mid-range because the material was not disseminated.

Form 1 offence and "double counting" argument

The applicant argued that treating the grooming conduct as contextual background for the principal offences amounted to double counting, given it was also the subject of a Form 1. The Court rejected this argument. Fagan J found it "particularly artificial," holding that the grooming conduct formed part of the wider setting of exploitation and corruption of the parental relationship in which the principal offences occurred. The fact that the conduct constituted a separate offence taken on a Form 1 did not require the sentencing court to exclude it from its assessment of the gravity of the other counts.

Subjective circumstances, character, and other grounds

The Court accepted that the applicant had no prior record, had good prospects of rehabilitation, was unlikely to reoffend, and had contributed to the community. However, the Court found this was not a case where prior good character or lack of prior convictions assisted the commission of the offences, so s 21A(5A) of the Crimes (Sentencing Procedure) Act did not apply. The victim impact statement was taken into account. No special circumstances were found to justify altering the non-parole period. On re-sentencing, applying the same plea discounts, the Court concluded that no lesser sentence than that originally imposed was warranted in law, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court's failure to take into account an applicable standard non-parole period as part of the instinctive synthesis of sentencing factors constitutes legal error requiring the appellate court to re-exercise the sentencing discretion afresh.
  • On re-sentencing after identified error, the Court of Criminal Appeal does not assess the degree to which the error affected the outcome; it makes its own independent assessment of the appropriate sentence without reference to the original as a guide.
  • Where a Form 1 offence involves conduct that also forms the factual context for a principal offence, it is not impermissible "double counting" for the sentencing court to treat that conduct as relevant to the objective seriousness of the principal offence.
  • Good character and absence of prior convictions will not attract full mitigating weight where, under s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the offender's good character or lack of record was of assistance in committing the offence. Here, that provision was not engaged on the facts.
  • An error in omitting indicative non-parole periods from individual sentences under s 54B(4) does not, by operation of s 54B(7), invalidate an aggregate sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C, 66C(4), 66EB(3), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(e), 21A(3)(f), 21A(5A), 32, 54A(2), 54B(7)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- 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
- Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107
- DL v The Queen [2018] HCA 32; (2018) 92 ALJR 764
- Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26