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Court of Criminal Appeal 21 December 2018

DM v R

[2018] NSWCCA 305

Sexual offences
CRIMINAL LAW SENTENCE APPEAL PARITY ACCUSED

Citation: DM v R [2018] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 21 December 2018
Judges: Simpson AJA, Johnson J, N Adams J

Background

The applicant, a juvenile male aged 17 years and seven months at the time of the offending, pleaded guilty to one count of sexual intercourse with a child aged 15 in company, contrary to s 66C(4) of the Crimes Act 1900 (NSW). A second offence of the same kind was taken into account on a Form 1 (a procedure allowing a court to consider additional offences when imposing sentence, without separately convicting the offender of those offences).

The offending occurred in the early hours of 21 May 2016 at a residential address. The victim, aged 15 years and five months, had been left without accommodation after her friend was arrested and found herself alone with the applicant and two co-offenders, HA and BJ. All three co-offenders were also juveniles.

In the District Court, Montgomery DCJ sentenced the applicant to five years imprisonment with a non-parole period of two years and nine months, backdated to commence on 27 July 2016. The applicant sought leave to appeal against that sentence on five grounds, principally that the sentencing judge made factual errors and that there was a disparity between his sentence and that of co-offender HA.

  • Whether the sentencing judge made a material factual error in finding the applicant knew the victim had nowhere to go on the night of the offence
  • Whether the sentencing judge made a material factual error in characterising the applicant as holding a leadership role in the offending
  • Whether the sentencing judge erred in failing to make an explicit finding as to the objective seriousness of the offence
  • Whether the applicant had a legitimate sense of grievance when comparing his sentence to that of co-offender HA (the parity ground)
  • Whether the sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that the sentencing judge had made a material factual error in characterising the applicant as occupying a leadership role in the offending. On the agreed facts, there was no basis for that finding. While the applicant had been more physically involved than his co-offender HA, that did not translate into a leadership role, and attributing one to him was an error that warranted intervention.

On the parity ground, the Court accepted that the applicant had a justifiable sense of grievance when comparing his sentence to that imposed on HA. The two offenders had broadly comparable roles and circumstances, yet the applicant received a meaningfully heavier sentence. The removal of the leadership finding was central to the parity analysis.

The Court accepted the remaining grounds only to the extent that they were overtaken by the established errors. It did not uphold the ground that the sentencing judge had failed to make a finding of objective seriousness, noting that the absence of an express finding did not necessarily constitute error where the judgment otherwise disclosed the judge's approach.

On re-sentencing, the Court took into account the applicant's subjective circumstances, including evidence of improved conduct and rehabilitation prospects in custody, his youth at the time of the offending, his early plea of guilty, and the need to achieve parity with the sentence imposed on HA. The Court imposed a reduced sentence of four years and six months imprisonment with a non-parole period of two years and five months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentence imposed at first instance quashed
  • Applicant re-sentenced to four years and six months imprisonment with a non-parole period of two years and five months, commencing 27 July 2016
  • First eligible parole date: 26 December 2018
  • Sentence expiry: 26 January 2021

Key Takeaways

  • A material factual error in a sentencing judge's findings, such as an unsupported finding of a leadership role, provides a recognised ground for appellate intervention even where the overall sentence might otherwise have fallen within an acceptable range.
  • The parity principle requires that co-offenders with broadly comparable culpability and circumstances not receive sentences so different as to give rise to a justifiable sense of grievance. The Court of Criminal Appeal applied this principle to correct a disparity between the applicant and his co-offender HA.
  • Where a sentencing judge deals with a juvenile offender according to law rather than under the Children (Criminal Proceedings) Act 1987 (NSW), the court must still account for the offender's youth as a significant mitigating factor in assessing moral culpability.
  • Evidence of improved conduct, rehabilitation efforts, and positive post-sentence prospects can be taken into account by the Court of Criminal Appeal on re-sentencing, even if those matters post-date the original sentencing hearing.
  • A Form 1 offence, taken into account at sentence without a separate conviction, still forms part of the sentencing calculus and can legitimately affect the overall sentence imposed for the principal count.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 17, 18, 33
- Crimes Act 1900 (NSW), ss 61J, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 54D
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- Ayik v R [2013] NSWCCA 119
- Dayment v R [2018] NSWCCA 132
- DL v The Queen (2018) 92 ALJR 764; [2018] HCA 32
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150
- Kelly v R [2017] NSWCCA 256
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- KT v The Queen (2008) A Crim R 571; [2008] NSWCCA 51
- Lloyd v R [2017] NSWCCA 303
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Mulato v R [2006] NSWCCA 282
- R v KB [2011] NSWCCA 190
- R v Uzabeaga (2000) 119 A Crim R 452; [2000] NSWCCA 381
- Rainbow v R [2018] NSWCCA 42
- Simpson v R [2014] NSWCCA 23
- Usher v R [2016] NSWCCA 276
- Wakeling v R [2016] NSWCCA 33