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Court of Criminal Appeal 27 September 2019

JE v R

[2019] NSWCCA 225

Sexual offences
CRIMINAL LAW SENTENCE APPEAL DISPARITY ESTABLISHED NEED TO RE SENTENCE.

Citation: JE v R [2019] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 27 September 2019
Judge(s): Hoeben CJ at CL (with Brereton JA and Fullerton J agreeing)

Background

The appellant, JE, was a 15-year-old student who, together with his co-offender NA (aged 14), committed serious sexual offences against a 14-year-old female classmate at NA's home in July 2017. The complainant had been encouraged to drink whisky and use marijuana before the offending occurred. A forensic pharmacologist estimated her blood alcohol level at 0.12 grams per 100 millilitres at the relevant time, and it was agreed she was unable to consent due to intoxication. NA had also secretly set up an iPad to record the offending.

Both JE and NA were sentenced in the District Court at Parramatta in January 2019. JE received an aggregate sentence of 4 years' imprisonment with a non-parole period of 2 years. NA received an aggregate of 4 years and 3 months with a non-parole period of 2 years. NA had been sentenced on four counts, including producing child abuse material (for the covert recording) and penetrating the complainant with his penis. JE was sentenced on three counts, and was not involved in the recording.

JE sought leave to appeal on the basis that the sentences imposed created an unjustified disparity, given that NA's moral culpability was significantly greater. JE's role was more limited: he did not penetrate the complainant, did not initiate the covert recording, and did not show the recording to others.

  • Whether the sentencing judge imposed aggregate sentences that created an unjustified disparity between JE and his co-offender NA, contrary to the parity principle in sentencing.
  • Whether the indicative sentences for individual counts, and the structure of the aggregate terms, reflected an unexplained inconsistency.
  • Whether, if disparity was established, the Court of Criminal Appeal should re-sentence JE.

Decision

The Court of Criminal Appeal found that disparity error had occurred. Hoeben CJ at CL identified several factors that made NA's moral culpability significantly greater than JE's: NA was the one who covertly set up the iPad to record the offending, showed the recording to a friend, and was the one who penetrated the complainant. JE participated in the assaults, but his role was comparatively less serious.

The Court found that the indicative sentences for individual counts did not adequately reflect this difference in culpability. In particular, the indicative sentence for Count 4 (the most serious, involving penile penetration) was 3 years for JE and only 3 years and 6 months for NA, a difference of just 6 months. Given the significantly greater seriousness of NA's overall conduct, this spread was insufficient and created an unexplained inconsistency across the sentence structure.

Applying the parity principle, confirmed in cases including KR v R [2012] NSWCCA 32, the Court concluded that a justified sense of grievance would arise if JE were to compare his aggregate sentence with NA's. The differential between their aggregate terms of imprisonment did not properly reflect the greater gravity of NA's offending.

In re-sentencing JE, the Court left the indicative sentences for individual counts undisturbed but reduced the aggregate term. The Court confirmed that the reduction was achievable without rendering the resulting sentence erroneously lenient.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Aggregate sentence imposed by Judge Bennett SC on 24 January 2019 quashed.
  • JE re-sentenced to an aggregate term of 3 years' imprisonment, commencing 7 August 2018 and expiring 6 August 2021, with a non-parole period of 1 year and 6 months expiring 6 February 2020.

Key Takeaways

  • The parity principle requires that co-offenders not receive sentences that produce an unjustified sense of grievance when one offender's moral culpability is meaningfully greater than the other's.
  • A difference in aggregate terms alone does not satisfy the parity principle if the structure of the indicative sentences fails to reflect relevant distinctions in culpability at the individual count level.
  • Where disparity is established, the Court of Criminal Appeal will undertake an independent re-sentencing exercise, considering whether the corrected sentence remains proportionate and is not erroneously lenient.
  • Factors specific to NA's offending, including the covert recording, showing that recording to a third party, and being the sole perpetrator of penile penetration, were treated as material indicators of greater moral culpability justifying a more substantial sentencing differential.
  • In re-exercising the sentencing discretion, the Court of Criminal Appeal is not confined to adjusting only the aggregate term; it may leave indicative sentences intact while restructuring the overall sentence to achieve a just outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1) (aggravated sexual assault in company), 61M(2) (aggravated indecent assault, victim under 16), 91H(2) (produce child abuse material)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- KR v R [2012] NSWCCA 32