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31
Court of Criminal Appeal 4 May 2018

Paul Campbell v R

[2018] NSWCCA 87

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE SENTENCING OF CHILDREN RELEVANT PRINCIPLES OF SENTENCING OFFENCES IMPULSIVE AND OPPORTUNISTIC STRONG EVIDENCE OF REHABILITATION

Citation: Paul Campbell v R [2018] NSWCCA 87
Court: NSW Court of Criminal Appeal
Date: 4 May 2018
Judges: Bathurst CJ, Schmidt J, Hamill J

Background

The appellant (identified by a pseudonym under statutory suppression requirements) was a 13-year-old child who committed multiple serious sexual offences against two younger female relatives, aged 6 and 7, during a family gathering in October 2016. The offences occurred opportunistically during a game of hide and seek while adults were in another room. The appellant pleaded guilty at the earliest opportunity and cooperated fully with authorities.

In the District Court, Judge Berman SC sentenced the appellant to an aggregate term of 16 months' imprisonment with a non-parole period of 8 months, structured as an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentence was a term of full-time custody, notwithstanding the appellant's age, early plea, and evidence of significant rehabilitative progress between offending and sentence.

During preparation for the appeal, counsel for the Crown identified a fundamental procedural defect: one of the offences listed on a Form 1 document (used to have additional offences taken into account on sentence) carried a maximum penalty of life imprisonment. Section 33(4)(b) of the Crimes (Sentencing Procedure) Act prohibits life-imprisonment offences from being dealt with in that manner. The Crown conceded the sentencing proceedings had miscarried as a result.

  • Whether the sentencing judge erred in dismissing, as contrary to principle, the Crown's own concession that a non-custodial sentence was within range
  • Whether the sentencing judge erred in failing to adequately consider alternatives to full-time custody
  • Whether the sentencing judge erred in assessing the objective seriousness of the offences
  • Whether the sentencing judge erred in finding the offences involved a breach of trust or authority
  • Whether the aggregate sentence was manifestly excessive
  • Whether the inclusion of a life-imprisonment offence on a Form 1 caused the sentencing proceedings to miscarry
  • Whether, given the miscarriage, the Court of Criminal Appeal should re-sentence or remit to the District Court

Decision

The Court of Criminal Appeal upheld multiple grounds of appeal. It found the sentencing judge had erred in several respects, including in the assessment of objective criminality, in rejecting the availability of non-custodial alternatives, and in finding the offences involved a breach of trust. The Court noted that the offences, while gravely serious, were impulsive and opportunistic, committed by a 13-year-old with no prior record, and that there was strong evidence of rehabilitative progress by the time of sentencing.

The Court reaffirmed the established principle that, in the sentencing of child offenders, rehabilitation is the paramount consideration, and that full-time custody should be a last resort. The Children (Criminal Proceedings) Act 1987 (NSW) and the body of case law on child sentencing require courts to give primacy to the prospect of the child's rehabilitation and to carefully consider all alternatives before imposing a custodial term.

On the Form 1 defect, the Crown's concession was accepted as plainly correct. Including a life-imprisonment offence on a Form 1 is prohibited by statute, and neither the parties nor the sentencing judge identified the error at first instance. The Court found the sentencing proceedings had miscarried on this basis alone.

The Court determined that the appropriate remedy was to remit the matter to the District Court rather than to re-sentence. The combination of the statutory defect, the number of sentencing errors established, and the need for a full consideration of all relevant matters (including up-to-date information about the appellant's circumstances) made remittal the more appropriate course.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court on 14 December 2017 quashed
  • Sentencing proceedings remitted to the District Court to be dealt with according to law

Key Takeaways

  • In sentencing child offenders in NSW, rehabilitation is the paramount sentencing objective. Full-time custody is a measure of last resort, and a sentencing court must genuinely consider whether any alternative is available before imposing a custodial term.
  • A sentencing judge cannot dismiss a Crown concession that a non-custodial sentence is within range simply on the basis that it conflicts with the judge's own view of principle, without engaging with why the concession is wrong.
  • Under s 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an offence carrying a maximum penalty of life imprisonment cannot lawfully be placed on a Form 1 for the purpose of being taken into account on sentence. Doing so causes the sentencing proceedings to miscarry.
  • The aggravating factor of "breach of trust" under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act requires more than a general family relationship. The sentencing judge's finding of breach of trust in these circumstances was identified as an error warranting appellate intervention.
  • Where multiple sentencing errors compound a statutory defect in the Form 1 process, remittal to the original court for resentencing may be more appropriate than the appellate court proceeding to re-sentence itself.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 5, 6, 15A, 17, 18
- Crimes Act 1900 (NSW), s 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 12, 21A, 31, 32, 33, 34, 35, 35A, 53A
- Criminal Appeal Act 1912 (NSW), ss 6, 7, 12

Key Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- RP v The Queen [2016] HCA 53
- R v Elliott and Blessington [2006] NSWCCA 305; (2006) 68 NSWLR 1
- Regina v SDM [2001] NSWCCA 158; (2001) 51 NSWLR 530
- MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, 231 A Crim R 413
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 14; [2002] NSWCCA 518
- BP v Regina, SW v Regina [2006] NSWCCA 172
- AEL v R [2007] NSWCCA 97
- Parente v R [2017] NSWCCA 284
- Clappison v R [2017] NSWCCA 33