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7
Court of Criminal Appeal 12 July 2019

LB v R

[2019] NSWCCA 151

Sexual offences
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE APPLICANT SENTENCED AFTER TRIAL TWO SEPARATE COMPLAINANTS TOUCHING AND DIGITAL PENETRATION

Citation: LB v R [2019] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 12 July 2019
Judges: Payne JA, Davies J, Button J

Background

The applicant was convicted after trial of two child sex offences. The first count involved indecently assaulting an eight-year-old girl, the sister of his then partner, by digitally touching her genitalia. The second count involved sexual intercourse with a five-year-old girl, the daughter of his then partner, by digital penetration. Both offences occurred in 2015 when the applicant was in his early thirties.

The sentencing judge, Judge Noman SC of the District Court, imposed five years' imprisonment for the first count and twelve years for the second, with the sentences partially accumulated to produce an aggregate term of thirteen years with a non-parole period of nine years. The applicant sought an extension of time and leave to appeal against those sentences.

The applicant raised five grounds of appeal, contending that the sentencing judge made factual errors, incorrectly assessed the objective seriousness of the offending, misapplied the standard non-parole periods, failed to adequately consider rehabilitation needs and mitigating background factors, and imposed sentences that were manifestly excessive.

  • Whether the sentencing judge made an erroneous factual finding about bleeding caused by the second offence, and whether that error infected the sentence
  • Whether the sentencing judge incorrectly assessed the objective seriousness of the offending for the second count
  • Whether the sentencing judge gave too much or too little weight to the standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge erred in finding the applicant could address rehabilitation needs in custody, thereby declining to find special circumstances
  • Whether the sentencing judge gave insufficient weight to the causal role of substance addiction and the applicant's disadvantaged background
  • Whether the overall sentences were manifestly excessive

Decision

Factual error as to bleeding: The sentencing judge's remarks referred to the digital penetration having caused "some bleeding." The Court accepted this was an error, as no evidence of bleeding was before the sentencing court. However, the Court found the reference to bleeding appeared to be only one consideration among many in the judge's assessment of objective seriousness. Crucially, there was ample evidence that the penetration caused pain, including the child complainant's own statements in her recorded interview and evidence from other witnesses, so the broader factual findings were properly supported.

Objective seriousness and standard non-parole periods: The Court found no appellable error in the overall assessment of objective seriousness. While the sentencing judge's language in characterising the offence as "above mid-range" was not ideally expressed, the substance of her Honour's reasoning was consistent with the principles in Muldrock v The Queen (2011) 244 CLR 120, which requires sentencing courts to treat standard non-parole periods as a guidepost rather than a rigid starting point. The non-parole period imposed for the second count was less than half the fifteen-year standard non-parole period, indicating considerable leniency had been applied in light of mitigating factors.

Rehabilitation, special circumstances, and background: The Court rejected the contention that the sentencing judge erred in finding the applicant could address rehabilitation in custody. No error of principle was identified in declining to find special circumstances. The court also found no error in the weight given to the applicant's disadvantaged background and substance addiction, noting that her Honour had addressed those matters in her remarks.

Manifest excess: The applicant provided no comparative statistics or cases to support the assertion that the sentences were plainly unreasonable or unjust. The Court noted several factors weighing against a finding of manifest excess: the maximum penalty for the second offence is life imprisonment, the complainant was only five years old, there was a breach of trust, the offending was not aberrant given the earlier offence against a different complainant, no remorse was found, rehabilitation prospects were not favourable, and the offending was committed in breach of an apprehended domestic violence order. There was also a significant degree of concurrency between the two individual sentences.

Orders Made

  • Extension of time for filing the Notice of Appeal granted to 25 January 2019
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A factual error in sentencing remarks does not automatically warrant resentencing; the appellate court will consider whether the error was one of several factors or was determinative of the outcome.
  • Under Muldrock, standard non-parole periods serve as guideposts in the sentencing exercise rather than mandatory benchmarks, and a non-parole period set below half the standard figure may reflect appropriate leniency without constituting error.
  • An assertion that a sentence is manifestly excessive carries little weight without comparative statistical data or analogous decided cases to demonstrate that the sentence is plainly unreasonable or unjust.
  • Concurrent structuring of sentences for multiple offences against different complainants, separated in time, is a relevant consideration in assessing whether an aggregate sentence is excessive.
  • The Court of Criminal Appeal confirmed that the maximum penalty of life imprisonment for sexual intercourse with a child under ten years reflects Parliament's recognition of the gravity of such offending, and this must be taken into account when assessing whether a sentence is excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 61M, 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10A, 44, 166

Cases:
- Muldrock v The Queen (2011) 244 CLR 120
- Jiang v R [2010] NSWCCA 277
- R v Fidow [2004] NSWCCA 172
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- TS v R [2007] NSWCCA 194