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, NSW
Date: 12 July 2019
Judges: Simpson AJA, Button J, Lonergan J

Background

The applicant was convicted after trial on two counts of aggravated sexual intercourse with a child under 10, contrary to s 66A(2) of the Crimes Act 1900 (NSW). The victim was his biological son, RS, who was four years old at the time of the offending. The offences were committed while the family was living in a tent in the Blue Mountains between November 2011 and January 2012.

The circumstances were particularly grave. The applicant had previously been convicted in South Australia in 1996 of five counts of indecent assault against three nieces aged between four and eleven years. As a result, his name was placed on a Child Protection Register and he was prohibited from living with his children. He relocated interstate without notifying authorities and continued to live with his children in deliberate breach of that regime.

In 2013 the applicant also pleaded guilty in NSW to five counts of aggravated indecent assault against another victim, committed in 2012. At the District Court sentencing on the present offences in February 2017, Judge Traill imposed an aggregate sentence of 30 years' imprisonment with a non-parole period of 22 years and 6 months.

  • Whether the sentencing judge erroneously assessed the objective seriousness of the two offences
  • Whether the sentencing judge misapplied the totality principle when arriving at the aggregate sentence
  • Whether the aggregate head sentence of 30 years with a non-parole period of 22 years and 6 months was manifestly excessive

Decision

The Court was divided. Button J, writing the principal judgment, concluded that the sentence was not manifestly excessive and that no error had been demonstrated in the sentencing judge's approach. His Honour found the sentencing judge had engaged carefully with the objective seriousness of the offences and had applied the totality principle appropriately, given the applicant's entrenched history of child sexual offending and the need to emphasise denunciation, deterrence, and community protection.

Simpson AJA, with whom Lonergan J agreed, took a different view. Simpson AJA accepted that the offences were of the utmost seriousness, noting the victim's extreme youth, the physical injury caused, the complete absence of remorse, and the applicant's deliberate evasion of protective measures. However, Simpson AJA concluded that the aggregate sentence of 30 years was manifestly excessive when measured against comparable sentences in the case law, and that an aggregate term of 22 years with a non-parole period of 16 years and 6 months was the appropriate sentence.

On the totality principle, Simpson AJA considered that the sentencing judge had given insufficient weight to the degree of concurrence that ought to apply when sentencing for two offences arising from the same course of conduct against the same victim in the same period. The indicative sentences for the individual counts, each reflecting the extreme seriousness of the offending, should have been more substantially moderated when combined into the aggregate.

Because Simpson AJA and Lonergan J formed the majority, the appeal was formally granted as to leave, but the orders made reflect the majority outcome: the original sentence was quashed and replaced with the reduced aggregate term proposed by Simpson AJA.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Note: The orders section as formally extracted records the appeal as dismissed. However, the body of Simpson AJA's judgment (the majority) proposes quashing the original sentence and substituting a reduced aggregate term of 22 years with a non-parole period of 16 years and 6 months. Readers should consult the full judgment to reconcile the formal orders with the majority's proposed disposition, as there appears to be an inconsistency in the extracted materials provided.

Key Takeaways

  • A majority of the Court of Criminal Appeal held that an aggregate sentence of 30 years for two counts of aggravated sexual intercourse with a child under 10 was manifestly excessive in the circumstances, notwithstanding the applicant's very serious criminal history and the grave nature of the offending.

  • The totality principle requires a sentencing court to moderate the cumulative effect of consecutive or partially concurrent sentences; Simpson AJA found this principle demanded greater concurrence between the indicative sentences than the sentencing judge applied.

  • Under s 66A(2) of the Crimes Act 1900 (NSW), the maximum penalty for aggravated sexual intercourse with a child under 10 is life imprisonment, with a standard non-parole period of 15 years, reflecting the legislature's recognition of the extreme seriousness of such offending.

  • Prior convictions for similar offending can significantly increase the appropriate sentence, but the principle established in Veen v The Queen [No 2] (1988) 164 CLR 465 remains relevant: prior offending cannot be used to punish an offender beyond what is proportionate to the current offences.

  • In sentencing for child sexual assault, courts are required to give substantial weight to denunciation, personal and general deterrence, and community protection through incapacitation, particularly where an offender has demonstrated a sustained pattern of offending against children over many years.

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