AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Court of Criminal Appeal 12 July 2019

Gibbons (a pseudonym) v R

[2019] NSWCCA 150

Sexual offences
CRIME SEXUAL INTERCOURSE WITH CHILD UNDER 10 CONVICTIONS ON TWO COUNTS AFTER TRIAL APPEAL DISMISSED

Citation: Gibbons (a pseudonym) v R [2019] NSWCCA 150
Court: Court of Criminal Appeal
Date: 12 July 2019
Judge(s): Simpson AJA (with whom Lonergan J agreed); Button J (dissenting on manifest excess)

Background

The applicant was convicted after a trial by jury of two counts of aggravated sexual intercourse with a child under 10 years, contrary to s 66A(2) of the Crimes Act 1900 (NSW). The offences, penile/oral penetration and penile/anal penetration causing bleeding, were committed against the applicant's biological son, who was four years old at the time. The offending occurred between November 2011 and January 2012 while the family was living in a tent in the Blue Mountains, having relocated from South Australia without notifying authorities.

The applicant had a significant prior history of child sexual offending. In 1996 he was convicted of indecent assault against three of his nieces, and as a result his name was placed on a Child Protection Register. He had been expressly directed not to reside with his children, but moved interstate and concealed his location from authorities. He was subsequently convicted in 2013 of separate aggravated indecent assaults against his then partner's younger sister.

The District Court sentenced the applicant to an aggregate term of 30 years imprisonment with a non-parole period of 22 years and 6 months, commencing 7 May 2015. The applicant sought leave to appeal against the severity of that sentence.

Legal Issues

  • Whether the sentencing judge erred in her assessments of objective seriousness, including by characterising both offences as within "the most serious category of offending" and placing them "near the top of the range"
  • Whether the sentencing judge failed to give adequate consideration to the totality principle, particularly with respect to the pre-existing sentence for offences against a separate victim
  • Whether the aggregate sentence of 30 years with a non-parole period of 22 years and 6 months was manifestly excessive

Decision

Ground 1: Objective seriousness

The Court unanimously rejected this ground. The submission that the absence of threats, additional force, or resistance from the complainant indicated overstatement of objective gravity was rejected outright: it could hardly be expected that threats or force would be necessary to secure compliance from a four-year-old child, nor that such a child would protest or resist (at [29]). That argument had also been repeatedly rejected by the Court of Criminal Appeal in prior decisions (at [30]-[31]). The sentencing judge had not made a "worst case" finding in the sense disapproved in The Queen v Kilic; the very fact that she did not impose a life sentence implicitly contradicted any such characterisation (at [38]-[39]). Placing offences on a scale of objective gravity is squarely within the sentencing judge's role, and no error was established in her doing so here (at [40]-[44]).

Ground 2: Totality

The Court unanimously rejected this ground. Although the sentencing judge did not expressly invoke the totality principle in relation to the pre-existing sentence, her explicit references to periods in custody referable to these matters and the commencement date she selected demonstrated practical awareness of the question (at [52]-[53], [127]-[128]). Critically, the pre-existing sentence had been imposed for serious offences against an entirely different victim in separate circumstances, and full accumulation was appropriate in those circumstances (at [128]-[129]). No error was established in the result (at [53], [130]).

Ground 3: Manifest excess

The Court divided on this ground. Button J, in a detailed analysis, concluded the aggregate sentence was manifestly excessive (at [193]-[194]). His Honour surveyed sentencing statistics showing the 30-year aggregate sat at the very top of the range of sentences actually imposed for the offence, and conducted a chronological review of comparable Court of Criminal Appeal decisions in which lesser sentences had been upheld or imposed on resentence (at [143]-[189]). He also identified a structural concern: if this sentence were correct, there would be insufficient "room" to accommodate commensurate sentences for offenders convicted of even more numerous offences against multiple victims, without resort to sentences of exceptional length (at [190]-[192]). Button J proposed an aggregate head sentence of 22 years with a non-parole period of 16 years and 6 months (at [199]-[200]).

Simpson AJA (with whom Lonergan J agreed) disagreed. Her Honour concluded that, not without hesitation, the 30-year sentence was within the bounds available to the sentencing judge, having regard to the maximum penalty of life imprisonment, the standard non-parole period of 15 years, the legislative history of s 66A(2), the parental relationship, the victim's extreme youth, the deliberate breach of the Child Protection Register regime, and the highly adverse pattern of prior sexual offending against children (at [44]-[60]). Simpson AJA also expressly rejected the reasoning in Button J's "Coherence in Sentencing" section, holding it was wrong in principle to reduce a sentence to accommodate a hypothetical worse case that might warrant a greater sentence in future (at [62]-[63]).

Because Simpson AJA and Lonergan J formed the majority, the appeal was dismissed and the 30-year aggregate sentence stood.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed
  • The 30-year aggregate sentence with a non-parole period of 22 years and 6 months, commencing 7 May 2015, was confirmed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the absence of threats, physical force, or overt resistance from a very young child is not a factor that detracts from the objective seriousness of child sexual assault offences; such factors could not realistically be present in offences against a four-year-old (at [29]-[31]).
  • A sentencing judge who characterises offences as falling within "the most serious category" of offending does not necessarily commit the error identified in The Queen v Kilic of treating them as "worst cases" warranting the maximum penalty; the inquiry is whether the characterisation led to identifiable error in the sentence actually imposed (at [38]-[41]).
  • Under the majority's reasoning, the legislative history of s 66A(2) of the Crimes Act 1900 (NSW), including progressive increases in maximum penalties, must be reflected in the penalties imposed, and a sentence is to be measured by reference to the maximum of life imprisonment (at [55]-[58]).
  • A dissenting judge applied sentencing statistics and a structural "coherence" analysis to conclude the aggregate sentence was manifestly excessive, but the majority held it was wrong in principle to reduce a sentence in order to preserve room for hypothetical future cases of greater gravity (at [62]-[63], [190]-[192]).
  • Where a sentencing judge does not expressly invoke the totality principle in relation to a pre-existing sentence, no error arises in the result if full accumulation was appropriate given that the earlier offences were committed against a different victim in separate circumstances (at [52]-[53], [128]-[129]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A(2)
- Crimes (Child Assault) Amendment Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A, Pt 3 Div 3, Pt 4 Div 1A
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- BR v R [2015] NSWCCA 255
- Bravo v R [2015] NSWCCA 302
- Faehringer v R [2017] NSWCCA 248
- Franklin v R [2016] NSWCCA 319
- Leslie v R [2013] NSWCCA 48
- Mammone v R [2013] NSWCCA 13
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- MD v R [2015] NSWCCA 37
- Mills v R [2017] NSWCCA 87
- MRW v R [2011] NSWCCA 260
- Mulato v R [2006] NSWCCA 282
- R v CTG [2017] NSWCCA 163
- R v MAK; R v MSK [2006] MSWCCA381; (2006) 167 A Crim R 159
- R v Scavera [2016] NSWCCA 145
- Saddler v R [2009] NSWCCA 83; (2009) 194 A Crim R 452
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14
- ZA v R [2017] NSWCCA 132