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Court of Criminal Appeal 17 July 2019

Eacott (a pseudonym) v R

[2019] NSWCCA 158

Sexual offences
CRIME CRIMINAL APPEALS APPEAL AGAINST SENTENCE PERSISTENT SEXUAL ABUSE OF A CHILD WHETHER SENTENCE MANIFESTLY EXCESSIVE OBJECTIVE SERIOUSNESS BELOW MID RANGE

Citation: Eacott (a pseudonym) v R [2019] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 17 July 2019
Judges: Leeming JA (principal judgment); Ierace J and Hidden AJ (agreeing)

Background

The applicant, whose identity is suppressed by statute, pleaded guilty in the Local Court to a single charge of persistent sexual abuse of a child under s 66EA of the Crimes Act 1900 (NSW). The victim was his natural daughter. The offending occurred on numerous occasions over approximately four years, from 2008 to January 2013, when the victim was aged between six and ten.

The conduct involved a variety of sexual acts, including touching of the applicant's genitals (initially outside clothing, sometimes while the applicant wore a lycra suit he called a "control suit"), manual masturbation of the applicant during a shower, whipping, and later direct sexual contact with the victim's body. The applicant manipulated the child through rewards such as lollies and story time, and framed the abuse as a game or fantasy. He voluntarily ceased the offending in January 2013. He was arrested in December 2016 after the victim disclosed the abuse to her mother and made prompt, full admissions to both his wife and police.

The sentencing judge in the District Court imposed a total sentence of six years' imprisonment with a non-parole period of three years and six months. The sentence included a 25% discount for the early guilty plea, placing the undiscounted notional starting point at eight years. A finding of special circumstances reduced the non-parole period below the statutory default. The applicant sought leave to appeal, arguing the sentence was manifestly excessive.

  • Whether the sentence of six years' imprisonment (with a non-parole period of three years and six months) was manifestly excessive for the offence of persistent sexual abuse of a child under s 66EA of the Crimes Act 1900 (NSW).
  • Whether the sentencing judge erred in the application of sentencing principles, having regard to the objective seriousness of the offending and the strength of the applicant's subjective case.

Decision

Leeming JA (with Ierace J and Hidden AJ agreeing) granted leave to appeal but dismissed the appeal. The Court found no error, whether apparent from the sentencing judge's reasons or inferred from the sentence itself.

To succeed on a ground of manifest excess, an applicant must demonstrate that the sentence was unreasonable or plainly unjust, not merely that the appellate court would have exercised the sentencing discretion differently. The Court confirmed that it is not its function to substitute its own view where no error is established.

The sentencing judge had assessed objective seriousness as below mid-range, taking into account mitigating features such as the absence of physical force, the partial physical barrier provided by the lycra suit in many incidents, and the applicant's voluntary cessation of offending. Against those factors, the judge weighed aggravating circumstances including the victim's young age, the applicant's position of trust as the child's father, the domestic setting, some degree of planning, and the escalating nature of the conduct. The sentencing judge also accepted a very strong subjective case: genuine remorse (including significant financial transfers to the victim's mother), an early guilty plea, full admissions, and good prospects of rehabilitation.

Leeming JA noted that the undiscounted notional starting point of eight years represented less than one-third of the 25-year maximum then applicable, and the ultimate sentence of six years was less than one-quarter of that maximum. Nothing in the sentencing judge's reasons disclosed any misapplication of principle. The Court was not satisfied that the sentence, viewed as a whole, was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence is not manifestly excessive merely because an appellate court would have imposed a different sentence. The applicant must show the sentence was unreasonable or plainly unjust, and the Court of Criminal Appeal confirmed this threshold was not met on these facts.

  • In dismissing the appeal, the Court accepted that a notional starting point of eight years (less than one-third of the applicable 25-year maximum) and a head sentence of six years were within the proper range for persistent child sexual abuse assessed as below mid-range in objective seriousness.

  • Where a sentencing judge makes careful findings of genuine remorse, supported by both oral evidence and concrete financial conduct, an appellate court will not readily disturb those findings as part of a manifest excess challenge.

  • The 25% guilty plea discount applied here reflected the applicant's early plea in the Local Court and full admissions to police, consistent with established sentencing practice.

  • Under s 66EA of the Crimes Act 1900 (NSW) as it stood during the offending period (2008 to 2013), the offence required three or more occasions on separate days and carried a maximum of 25 years. The section has since been amended to reduce the requisite number of occasions and increase the maximum to life imprisonment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66EA, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25
- Mills v Regina [2017] NSWCCA 87
- R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64