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Court of Criminal Appeal 19 December 2019

CC v R

[2019] NSWCCA 230

Sexual offencesPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL VICTIM IS APPLICANT’S BROTHER

Citation: CC v R [2019] NSWCCA 230
Court: NSW Court of Criminal Appeal
Date: 19 December 2019
Judges: Payne JA, Fullerton J, Bellew J

Background

The applicant was convicted by jury of six counts of sexual intercourse with a child, in each case his younger brother. The offending spanned approximately four years, from 2001 to 2005, during which the applicant was aged between 15 and 19 and the complainant was aged between 11 and 15. The applicant also pleaded guilty to one count of attempting to pervert the course of justice by offering money to his brother in exchange for withdrawing the allegations.

At sentencing in March 2018, the District Court imposed an aggregate sentence of five years with a non-parole period of two years and nine months. The sentencing judge found special circumstances, noting the applicant's youth at the time of offending, the likely conditions of his custody, and that this was his first experience of full-time imprisonment.

The applicant sought leave to appeal the sentence to the Court of Criminal Appeal, contending the aggregate term was manifestly excessive. The application was filed out of time, requiring the Court to first consider whether to extend time.

  • Whether leave should be granted to extend time for filing the appeal, given the delay between the Notice of Intention to Appeal (March 2018) and the Notice of Application for Leave (June 2019)
  • Whether the indicative sentences for Counts 1 to 5 (the sexual offence counts) were excessive
  • Whether the indicative sentence for Count 7 (perverting the course of justice) was excessive
  • Whether the aggregate sentence of five years was manifestly excessive in the sense of being unreasonable or plainly unjust

Decision

Fullerton J (with Payne JA and Bellew J agreeing) extended time for filing the appeal to 20 June 2019, accepting the explanation provided by the applicant's solicitor. Although the Crown had initially opposed the extension, it did not file evidence in reply once the solicitor's affidavit was served, and the Court treated that as an absence of continued opposition to the extension itself.

On the merits, the Court found no error in the sentencing judge's approach to the sexual offences. The sentencing judge had assessed each of Counts 1 to 5 as objectively grave. The applicant's challenge did not contest the sentence for Count 6, did not suggest the totality principle had been misapplied, and accepted the substantial notional concurrency built into the indicated sentences for Counts 3 to 5.

On Count 7, the applicant argued the sentence was excessive because his father had played a pivotal role in the plan. The Court rejected this characterisation. The sentencing judge had already given credit for the father's involvement by reducing moral culpability, but found the applicant was a willing and encouraging participant who stood to benefit substantially if the complainant accepted payment. The Court described the challenge to the discounted indicative sentence of two years and eight months against a maximum of 14 years as without merit.

With no meritorious challenge established for any of the individual counts, no basis remained to find the aggregate sentence unreasonable or plainly unjust. The Court refused leave to appeal.

Orders Made

  • Time for filing the notice of application for leave to appeal extended to 20 June 2019
  • Leave to appeal refused

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence will only be manifestly excessive if it is unreasonable or plainly unjust, not merely because individual counts might arguably attract lighter sentences in isolation.
  • A finding of special circumstances can be supported by a combination of factors, including the offender's age at the time of offending, likely custodial conditions, and the fact that the sentence represents the offender's first period of full-time custody.
  • Where a co-participant plays a more central role in a perverting-justice scheme, that may reduce the principal offender's moral culpability, but it does not negate criminal responsibility where the offender was a willing participant who actively encouraged the conduct and stood to benefit from it.
  • No error was established in the sentencing judge's assessment of objective gravity for sexual offences against a sibling spanning several years and multiple statutory categories of victim age.
  • Procedural delay in filing a sentence appeal does not automatically preclude an extension of time, but the applicant bears the evidential burden of explaining the delay, and the absence of a formal explanation at the hearing will draw the Court's attention.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW), ss 66C(1), 66C(3), 319
- Criminal Appeal Act 1912 (NSW), s 10(1)(b)

Cases:
- CC v R [2019] NSWCCA 229 (related appeal arising from separate convictions)