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Court of Criminal Appeal 19 December 2018

Alarcon v R

[2018] NSWCCA 298

Sexual offencesAssault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE ASSAULT WITH ACT OF INDECENCY VICTIM UNDER 16 YEARS

Citation: Alarcon v R [2018] NSWCCA 298
Court: Court of Criminal Appeal, New South Wales
Date: 19 December 2018
Judges: Basten JA, Schmidt J, Fagan J

Background

The appellant was sentenced in April 2017 by Syme DCJ in the District Court for offences committed on 16 May 2015. He had attended a party at a private home where the victims were teenage girls aged 14 and 15. He pleaded guilty to an indecent assault on one victim (count 1), digital sexual intercourse with the other victim (count 2), and intimidation by threatening the victim's friends with a lump hammer and then a knife as they tried to leave the property (count 3). Two further offences were taken into account on a Form 1 in respect of count 2.

The appellant also faced re-sentencing for separate domestic violence offences against his wife from December 2014, for which he had been on good behaviour bonds that he breached by committing the 2015 offences. The total sentence across all matters was 6 years and 4 months imprisonment with a non-parole period of 4 years and 6 months. A 12% discount was applied to reflect his guilty pleas.

The appellant sought leave to appeal against the sentences imposed for the sexual intercourse offence (count 2) and the intimidation offence (count 3), arguing factual error and manifest excess.

  • Whether the sentencing judge mistook the facts in relation to the intimidation offence (count 3), thereby erring in her assessment of its objective seriousness
  • Whether the sentences imposed for count 2 (sexual intercourse with a person under 16) and count 3 (intimidation) were manifestly excessive

Decision

Ground 1: Factual error on count 3

The appellant argued that the sentencing judge misidentified the victim of the intimidation offence and thereby overstated the charge's objective seriousness. Schmidt J examined the agreed facts and the sentencing remarks carefully and concluded that any description by the judge of the sequence of events did not constitute a material factual error that infected the sentencing exercise. The ground was rejected.

Ground 2: Manifest excess on counts 2 and 3

Schmidt J found no basis to conclude that either sentence was manifestly excessive, taking into account the serious nature of the offending, the Form 1 matters, and the applicable sentencing principles. Fagan J added detailed reasons on count 2, describing the offence as an "appalling crime": the appellant was 37 years old, was temporarily the only adult present, and used that opportunity to isolate a 14-year-old girl in a locked garage and sexually assault her over her protests for approximately five minutes. She had to be physically rescued by other teenagers.

Fagan J acknowledged the sentence of 5 years and 8 months with a non-parole period of 3 years and 10 months (after the 12% plea discount and inclusive of the Form 1 matters) was "a stern penalty," but concluded it was within the sentencing judge's discretion given the objective seriousness of the offending. The staggered commencement dates applied across individual sentences were also found to be within the available range. Both grounds were dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's factual findings regarding the intimidation offence; a characterisation of events that does not materially distort the objective seriousness of the conduct will not ground appellate intervention.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence incorporating Form 1 offences of significant gravity can properly attract a substantial penalty, even where a plea discount has been applied.
  • Where an adult offender exploits a position of temporary supervisory responsibility over minors to commit serious sexual violence, the sentencing court may treat that circumstance as a significant aggravating feature going to objective seriousness.
  • A sentence described as "stern" is not necessarily manifestly excessive; the appellate court will not intervene where the sentence, though near the upper range, remains within the discretion available to the sentencing judge.
  • Under the Form 1 procedure, additional offences taken into account must increase the sentence on the principal count; the Court reiterated this requirement by reference to the established principle in Attorney General's Application No 1 of 2002.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61M(2), 66C(3)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A, 32

Cases
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2
- DL v The Queen [2018] HCA 32
- Muldrock v The Queen (2011) 244 CLR 120
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Power v The Queen (1974) 131 CLR 623
- Hughes v R [2018] NSWCCA 2
- Kresovic v R [2018] NSWCCA 37
- Moss v R [2015] NSWCCA 313
- R v McNaughton (2006) 66 NSWLR 566
- PB v R [2016] NSWCCA 258
- R v Wright [2017] NSWCCA 102