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Court of Criminal Appeal 14 June 2019

DH v R

[2019] NSWCCA 128

Sexual offences
CRIMINAL LAW SENTENCING CHILD SEXUAL ASSAULT INDICTMENT NOT CORRECTLY PLEADED JUDGE ADOPTS ERROR IN INDICTMENT ERROR ESTABLISHED

Citation: DH v R [2019] NSWCCA 128
Court: NSW Court of Criminal Appeal
Date: 14 June 2019
Judges: Leeming JA, Hamill J, N Adams J

Background

The applicant was sentenced in the District Court to an aggregate term of 12 years imprisonment with a non-parole period of 9 years, following a late guilty plea to four counts of child sexual assault committed against his partner's daughter. The offences spanned approximately 2008 to 2015, beginning when the victim was around eight or nine years old. Four additional similar offences were taken into account on a Form 1 document at sentencing.

The applicant sought leave to appeal on the basis that the sentencing judge made two distinct legal errors, each affecting the assessment of the objective seriousness of the offences and the ultimate sentence imposed.

  • Whether the sentencing judge erred by assessing the objective seriousness of certain counts by reference to an incorrect statutory age (16 years) under s 61M(2) of the Crimes Act 1900 (NSW), when the correct age at the relevant time was 10 years.
  • Whether the sentencing judge erred by treating the victim's age as an aggravating circumstance of vulnerability under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW), given that all children are necessarily caught by the relevant provision.
  • Whether, if either error was established, a different and less severe sentence was warranted.

Decision

Ground 1: Incorrect statutory age

The relevant provision, s 61M(2), had been amended to increase the protected age from 10 to 16 years. The indictment was not correctly pleaded to reflect the age applicable at the time of the relevant offences, and the sentencing judge, not having been made aware of the amendment, adopted that error. This affected the judge's assessment of objective criminality. The Court of Criminal Appeal found the error established.

Ground 2: Vulnerability as an aggravating factor

The sentencing judge treated the victim's age as a factor aggravating the offences under the vulnerability provision in s 21A(2)(l). The Court found this was an error. Because every victim caught by the relevant provision is, by definition, a child, age-based vulnerability is already embedded in the offence itself. It cannot also operate as a separate aggravating circumstance without amounting to double counting.

Re-sentencing

Having established both errors, the Court exercised the sentencing discretion afresh. Taking into account all relevant circumstances, including the nature and number of offences, the Form 1 matters, the 10% discount for the late guilty plea, and the indicative sentences for each count, the Court determined that a lesser aggregate sentence was warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The aggregate sentence imposed in the District Court quashed.
  • The applicant re-sentenced to an aggregate non-parole period of 7 years and 6 months commencing 16 November 2017 and expiring 15 May 2025, with a balance of parole of 2 years and 6 months commencing 16 May 2025 and expiring 15 November 2027.

Key Takeaways

  • A sentencing judge who is not made aware of a statutory amendment and who sentences by reference to the superseded version of a provision commits a legal error capable of vitiating the sentence on appeal.
  • Where an element of an offence, such as the age of the victim, defines the very class of persons the provision protects, that element cannot also function as a separate aggravating circumstance under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999. Treating it as such constitutes double counting.
  • Errors in the pleading of an indictment that are adopted by the sentencing court can infect the entire sentencing exercise, particularly where they distort the objective seriousness of the offending.
  • In re-sentencing, the Court of Criminal Appeal reduced the aggregate sentence from 12 years (non-parole period 9 years) to 10 years (non-parole period 7 years and 6 months), reflecting the correction of both grounds of error.
  • Under the aggregate sentencing approach, the Court assigned indicative sentences to each count before arriving at the aggregate, consistent with the requirements discussed in cases such as Kentwell v The Queen (2014) 252 CLR 601.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(l), 44
- Criminal Appeal Act 1912 (Cth), s 6(3)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- JM v R [2014] NSWCCA 297
- R v Cahill [2015] NSWCCA 53
- Glare v R [2015] NSWCCA 194
- Bao v R [2016] NSWCCA 16
- PG v R [2017] NSWCCA 179