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Court of Criminal Appeal 12 July 2019

R v JJ

[2019] NSWCCA 148

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST INADEQUACY

Citation: JJ v R [2019] NSWCCA 148
Court: Court of Criminal Appeal, New South Wales
Date: 12 July 2019
Judge(s): Payne JA (principal judgment); Davies J and Button J (agreeing)

Background

The respondent, referred to by the pseudonym "JJ" to protect the victim's identity, was convicted by jury of two counts of sexual intercourse with a child under 10 years of age, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The victim was his de facto stepdaughter. The first offence occurred in 2015, when the victim was six years old; the second occurred in 2017, when she was nine. Both offences took place on a rural property in southern New South Wales.

On 7 December 2018, the sentencing judge in the District Court imposed an aggregate term of six years imprisonment with a non-parole period of three years and nine months. The sentencing judge characterised the offences as "extremely serious" but assessed each as falling below the mid-range of objective seriousness, and made a finding of special circumstances, reducing the statutory ratio between the aggregate sentence and non-parole period from 75 per cent to 62.5 per cent.

The Deputy Director of Public Prosecutions appealed to the Court of Criminal Appeal on the sole ground that the sentence was manifestly inadequate.

  • Whether the aggregate sentence of six years imprisonment was manifestly inadequate for two offences of sexual intercourse with a child under 10 years, having regard to the maximum penalties prescribed by Parliament.
  • Whether the sentencing judge's assessment of objective seriousness was open on the facts.
  • Whether the residual discretion not to resentence should be exercised in the respondent's favour.

Decision

The Court allowed the appeal and held that the six-year aggregate sentence was manifestly inadequate, even accepting the sentencing judge's assessment of objective seriousness. Payne JA, with Davies and Button JJ agreeing, emphasised that the applicable standard of appellate review requires the question to be whether the sentence was open to the sentencing judge, not simply whether it failed to reflect the objective seriousness of the offending. No error was found in the conclusion that both offences fell below the mid-range of objective seriousness, though closer to the middle than the lower end of the range.

Despite accepting that finding, the Court concluded that six years was nonetheless unavailable as an appropriate sentence. Several considerations pointed to this conclusion. Parliament had fixed a maximum of 25 years for the first offence and life imprisonment for the second, signalling the legislature's view of the gravity of such conduct. Courts have consistently recognised the long-term damage that child sexual abuse can cause to victims. The victim was comfortably below the statutory threshold of 10 years at the time of both offences, and this was not a case where the offending barely crossed the threshold into its more serious form. The criminal acts also carried significant potential for harm.

The Court declined to exercise the residual discretion not to resentence, noting that the respondent's counsel properly made no submissions in favour of that course. The Court resentenced the respondent to an aggregate term of eight years imprisonment, retaining the finding of special circumstances, with an aggregate non-parole period of five years.

Orders Made

  • Appeal allowed.
  • Sentence imposed by Hoy SC DCJ on 7 December 2018 quashed.
  • In lieu thereof, the respondent is sentenced to an aggregate term of imprisonment of 8 years with an aggregate non-parole period of 5 years, each dating from 10 July 2017.
  • Indicative sentences: 5 years (non-parole period 3 years 6 months) for count 1; 7 years (non-parole period 4 years) for count 2.
  • First eligible for parole on 9 July 2022.

Key Takeaways

  • On a Crown appeal for manifest inadequacy, the governing question is whether the sentence was open to the sentencing judge, not simply whether it accurately reflected the objective seriousness of the offending. This distinction, confirmed in CMB v Attorney General for New South Wales (2015) 256 CLR 346, limits but does not eliminate appellate intervention.
  • No error was established in the sentencing judge's assessment that both offences fell below the mid-range of objective seriousness. The Court of Criminal Appeal accepted that finding but proceeded to allow the appeal on the basis that even within the available range, six years was not an open sentence.
  • The maximum penalties set by Parliament carry significant weight in sentencing for child sexual offences. The Court treated the legislature's decision to increase the maximum for s 66A(1) offences to life imprisonment as a strong indicator of the seriousness with which such conduct must be treated.
  • A finding of special circumstances, here based on a first significant period of custody and the need for extended rehabilitation, can validly reduce the statutory non-parole period ratio. The Court of Criminal Appeal retained that finding on resentencing.
  • Where a Crown appeal against sentence succeeds and the respondent's counsel concedes no basis to resist resentencing, the residual discretion not to intervene will generally not be exercised.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb) and s 21A(2)(k)

Cases
- Carroll v The Queen [2009] HCA 13; 83 ALJR 579
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- EG v R [2015] NSWCCA 21
- House v The King (1936) 55 CLR 499; [1936] HCA 50
- Mulato v The Queen [2006] NSWCCA 282
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49