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Court of Criminal Appeal 20 December 2018

Bray v R

[2018] NSWCCA 301

Sexual offences
CRIME SENTENCE APPEAL AGGRAVATED INDECENT ASSAULT OF CHILDREN PAROLE PERIOD BY SIX MONTHS

Citation: Bray v R [2018] NSWCCA 301
Court: NSW Court of Criminal Appeal
Date: 20 December 2018
Judge(s): Macfarlan JA; Rothman J; R A Hulme J (judgment delivered by R A Hulme J, with whom Macfarlan JA and Rothman J agreed)

Background

The applicant was convicted by jury of five offences of aggravated indecent assault of children under s 61M(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years' imprisonment and a standard non-parole period of 8 years. The offending involved two young victims, the applicant's stepdaughters, aged between 10 and 12 at the time. The offences occurred in the victims' own bedrooms in 2009.

The District Court judge imposed an aggregate sentence of 10 years' imprisonment with a non-parole period of 7 years. She found that the offences were not committed in isolation, that the applicant held a position of authority over the victims, and that the offending warranted a finding that each offence fell just above the mid-range of objective seriousness.

The applicant sought leave to appeal, arguing errors in the assessment of objective seriousness, insufficient effect given to a finding of special circumstances, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective seriousness of the five offences
  • Whether the judge gave proper effect to a finding of special circumstances when setting the non-parole period
  • Whether the aggregate sentence of 10 years with a 7-year non-parole period was manifestly excessive

Decision

Objective seriousness: The Court of Criminal Appeal found no error in the judge's assessment. The applicant challenged several factual findings, including the characterisation of the touching as "skin to skin contact" and the scope of conduct found proved in relation to two of the counts. The Court rejected these challenges, finding it was open to the judge to proceed on the facts as described in the sentencing remarks. The Court also observed that the required degree of precision in placing an offence within a seriousness range should not be overstated: some imprecision is inevitable and does not of itself constitute appealable error.

Special circumstances: The judge found special circumstances and reduced the non-parole period by six months below the statutory default ratio. The applicant argued this reduction was insufficient. The Court found no error, noting that the reduction adequately reflected the relevant considerations, including the applicant's age and the need for supervision on release.

Manifest excess and comparative cases: The Court declined to find the aggregate sentence manifestly excessive, observing that the indicative individual sentences, while stern, were not erroneous, and that the substantial degree of concurrency built into the aggregate sentence was a countervailing feature. The Court took the opportunity to criticise the applicant's reliance on statistical data from the Judicial Commission and on the decision in Scales v R [2017] NSWCCA 293 as a comparable case. Statistical sentencing data carries significant limitations, and the Court noted that Scales v R contained contradictory reasoning that disqualified it as a useful comparator.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing judges are not required to achieve mathematical precision when placing an offence within a range of seriousness; a degree of imprecision in that evaluative exercise will not ordinarily constitute appellable error.
  • A finding of special circumstances does not mandate any particular quantum of reduction to the non-parole period; the adequacy of the reduction turns on the facts and circumstances of the individual case.
  • Comparative sentencing statistics drawn from the Judicial Commission's database carry significant methodological limitations, including how aggregate and effective sentences are recorded, and the Court reiterated that such statistics are of limited assistance in sentence appeals.
  • In dismissing the appeal, the Court identified internal contradictions in Scales v R [2017] NSWCCA 293 that rendered it unreliable as a sentencing comparator.
  • The anomaly of a standard non-parole period set at 80% of the maximum penalty under s 61M(2) was noted, consistent with earlier observations in Corby v R [2010] NSWCCA 146; courts must still have regard to it, though the weight it attracts may be reduced by reason of the anomaly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2B)
- Crimes (Administration of Sentences) Act 1999 (NSW) s 128C
- Crimes (Administration of Sentences) Regulation 1999 (NSW) r 214A

Cases
- Scales v R [2017] NSWCCA 293
- Corby v R [2010] NSWCCA 146
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Chaloner v R [2018] NSWCCA 59
- Rampe v R [2018] NSWCCA 163
- Gumbleton v R [2017] NSWCCA 314
- Why v R [2017] NSWCCA 101
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- Knight v R [2015] NSWCCA 222
- WC v R [2015] NSWCCA 52
- Wray v R [2014] NSWCCA 166
- Dawson v R [2013] NSWCCA 61
- EJDG v R [2012] NSWCCA 251
- EG v R [2015] NSWCCA 21
- GSH v R; R v GSH [2009] NSWCCA 214
- Regina v AEM Snr; Regina v KEM; Regina v MM [2002] NSWCCA 58
- Mulato v R [2006] NSWCCA 282