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Court of Criminal Appeal 9 August 2019

Facer (a pseudonym) v R

[2019] NSWCCA 180

Also reported as (2019) 279 A Crim R 156
Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE COMPARISON WITH OTHER SENTENCES

Citation: Facer (a pseudonym) v R [2019] NSWCCA 180
Court: NSW Court of Criminal Appeal
Date: 9 August 2019
Judge(s): Leeming JA (primary judgment), Davies J and Button J (agreeing)

Background

The applicant, referred to by the pseudonym "Facer" due to statutory suppression, pleaded guilty to six sexual offences against his granddaughter. The offending occurred over approximately five years when the victim was aged between 9 and 14, and included three counts of aggravated sexual intercourse with a child under 10 (digital penetration), one count of attempted sexual intercourse with a child under 10, and two counts of aggravated sexual intercourse with a child aged 10 to 14. Five additional offences, including conduct beginning when the victim was 7, were placed on a Form 1 and taken into account on sentence. The total period of offending, including the Form 1 matters, spanned seven years.

At the sentencing hearing in late 2016, the primary judge received evidence including victim impact material, psychological and psychiatric reports, a pre-sentence report, an agreed statement of facts, and a handwritten letter of remorse from the applicant. On 1 March 2017, the primary judge imposed an aggregate sentence of 21 years with a non-parole period of 15 years and 9 months, incorporating a 25% discount for the guilty pleas.

The applicant sought leave to appeal on two grounds: first, that the sentencing judge erred by failing to find "special circumstances" justifying a reduced non-parole period ratio; and second, that the overall sentence was manifestly excessive.

  • Whether the primary judge erred by declining to find "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), given the applicant's age, first-time custody status, and the length of the sentence.
  • Whether the aggregate sentence of 21 years was manifestly excessive, particularly having regard to sentencing statistics and an identified error in the indicative sentences.
  • Whether a sentencing error arose from the primary judge's apparent transposition of pre-discount and post-discount figures for three of the six indicative sentences.

Decision

Special circumstances: The Court of Criminal Appeal refused leave on the special circumstances ground. The primary judge had expressly concluded that the length of parole available under the standard statutory ratio was sufficient to serve the purposes of supervised release. The Court confirmed that a first custodial sentence and advanced age are not, by themselves, sufficient to warrant a special circumstances finding, particularly where the non-parole period represents the minimum time the offender should serve.

Manifest excess: The Court granted leave on the manifest excess ground. Two features of the sentencing process supported that conclusion. First, the Crown itself acknowledged the sentence was the second highest in New South Wales following a guilty plea to the relevant offence over the preceding seven years. Second, the transcript revealed that the primary judge had inadvertently announced the pre-discount (rather than post-discount) indicative sentences for counts 5, 6 and 10. The judge later issued an addendum correcting the figures, but this created uncertainty about the basis on which the aggregate had been calculated.

Resentencing: On resentencing, Leeming JA took into account the severity and duration of the offending, the need for general deterrence, the applicant's genuine remorse, his lack of prior offending, the low risk of reoffending, and the post-sentencing transfer of substantially all his assets to his former wife for the benefit of the victim. No special circumstances were found on resentencing. An aggregate sentence of 16 and a half years was imposed with a non-parole period of 12 years and 4 months.

Orders Made

  • Leave to appeal refused on the special circumstances ground.
  • Leave to appeal granted and appeal allowed on the manifest excess ground.
  • Original sentence set aside and the applicant resentenced to an aggregate term of 16 years and 6 months imprisonment.
  • Non-parole period of 12 years and 4 months (no special circumstances found).
  • Sentence backdated to 14 July 2015 (date taken into custody), expiring 13 January 2032.
  • Earliest parole eligibility date: 13 November 2027.
  • Indicative sentences specified for each count in accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), each incorporating a 25% guilty plea discount.

Key Takeaways

  • A first custodial sentence and advanced age, taken alone, do not constitute "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW); the sentencing court may decline to find special circumstances where the parole period available under the standard ratio is already sufficient to meet rehabilitative and reintegration purposes.
  • Where an applicant can demonstrate that a sentence is statistically an outlier and that an error may have affected the calculation of indicative sentences, the Court of Criminal Appeal will grant leave to argue manifest excess even for offending of the utmost gravity.
  • Procedural errors in announcing indicative sentences under s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) can give rise to doubt about the proper basis for an aggregate sentence, strengthening grounds for appellate intervention.
  • Post-sentencing conduct, including the transfer of assets intended to benefit the victim, is a legitimate factor in the synthesis of sentencing considerations on resentencing, though it does not diminish the need for severe punishment for prolonged child sexual abuse.
  • General deterrence carries significant weight in cases involving repeated child sexual offending within a family relationship, and must be reflected meaningfully in the non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66A, 66B, 66C, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44, 53A
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- BR v R [2015] NSWCCA 255
- Bravo v R [2015] NSWCCA 302
- Davies v R [2019] NSWCCA 45
- Franklin v R [2016] NSWCCA 319
- Gibbons (a pseudonym) v R [2019] NSWCCA 150
- R v Boon [2019] NSWSC 813
- R v Gavel [2014] NSWCCA 56
- R v RJB [2019] NSWSC 719
- R v Yavuz (No 6) [2019] NSWSC 95
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48