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9
Court of Criminal Appeal 23 October 2019

Bell v R

[2019] NSWCCA 251

Sexual offences
CRIMINAL LAW VICTIM HAD COGNITIVE IMPAIRMENT ASSERTED ERRORS REJECTED SENTENCE MANIFESTLY EXCESSIVE

Citation: Bell v R [2019] NSWCCA 251
Court: Court of Criminal Appeal (NSW)
Date: 23 October 2019
Judges: Bell P, Simpson AJA, R A Hulme J

Background

The applicant pleaded guilty in the District Court to two offences of sexual intercourse with a child aged between 10 and 14 years in circumstances of aggravation, specifically that the victim had a cognitive impairment, contrary to s 66C(2) of the Crimes Act 1900 (NSW). The victim was a 12-year-old girl with a mild intellectual disability and a hearing impairment. The applicant, then aged 28, had moved into the victim's family home after becoming homeless and had become a familiar presence in the household over several months before the offending occurred.

The District Court sentenced the applicant to an aggregate term of 9 years and 6 months imprisonment, with a non-parole period of 7 years. The sentencing judge indicated that, had individual sentences been imposed, they would have been 5 years and 7 months for the first offence and 6 years and 9 months for the second.

The applicant sought leave to appeal against that sentence on two grounds: that the sentencing judge erred in assessing the objective seriousness of the offences, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to treat the victim's apparent willingness as a mitigating factor going to objective seriousness
  • Whether the victim's cognitive impairment was necessarily a less serious form of aggravation compared with the other circumstances listed in s 66C(5) of the Crimes Act 1900
  • Whether the sentencing judge erred in finding the second offence was aggravated by planning
  • Whether the aggregate sentence was manifestly excessive having regard to the principle of totality and the applicant's subjective case

Decision

Ground 1: Objective seriousness

The Court unanimously rejected all three asserted errors under ground 1. On the question of the victim's apparent willingness, the Court reaffirmed the long-established principle that a child's consent is not a mitigating factor in child sexual assault offences. The absence of non-consent as an aggravating circumstance does not, by the same token, reduce the objective seriousness of the conduct.

The Court also rejected the submission that cognitive impairment, as a form of aggravation under s 66C(5), is self-evidently less serious than the other aggravating circumstances in that provision. The Court found no basis to rank it as a necessarily lesser form of aggravation. On the planning point, the Court noted that counsel for the applicant had himself introduced the concept of planning at the sentencing hearing; appellate courts are generally reluctant to entertain submissions that contradict positions taken at first instance, and no error was established.

Ground 2: Manifest excess

The Court upheld the manifest excess ground. Applying the totality principle, the proper question on appeal from an aggregate sentence is whether the actual sentence imposed is proportionate to the totality of the offender's criminality, not whether each individual indicative sentence was correct in isolation. Where individual sentences are indicated under Pearce v The Queen, the statutory maximum and standard non-parole period remain useful guideposts in that appellate assessment.

The Court found that, while a stern sentence was plainly required given the nature of the offending and the sentencing purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999, the sentencing judge had not given adequate weight to the favourable aspects of the applicant's subjective case when arriving at the aggregate. The degree of accumulation of the indicative sentences was too substantial once subjective matters were properly brought to account. The Court reduced the aggregate sentence accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence upheld
  • Sentence imposed in the District Court on 10 August 2018 quashed
  • In lieu, an aggregate sentence of 7 years and 6 months imprisonment imposed, with a non-parole period of 5 years and 7 months, dating from 18 April 2017, with eligibility for parole from 17 November 2022

Key Takeaways

  • A child's apparent consent or willingness is not a mitigating factor in child sexual assault offences; this principle is long-settled in NSW and was confirmed again here.
  • No error was established in the sentencing judge's refusal to treat the victim's cognitive impairment as necessarily a lesser form of aggravation within the s 66C(5) list; the comparative seriousness of aggravating circumstances is a factual assessment, not a fixed hierarchy.
  • Where an applicant's counsel raised the concept of planning at the original sentencing hearing, the Court of Criminal Appeal declined to entertain a contrary submission on appeal, reflecting the established reluctance of appellate courts to accept positions that contradict those taken below.
  • In assessing an aggregate sentence for manifest excess, the relevant question is whether the sentence is proportionate to the totality of the offender's criminality; subjective matters must receive genuine weight and must not lose their force in the process of accumulating indicative sentences.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, statutory maximums and standard non-parole periods remain available as legislative guideposts even when the sentencing exercise results in a single aggregate term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61H(1A), 61HD(1A), 61J, 66C(2), 66C(5), 66C(5)(f)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 21A(2)(n), 53A, 54B(4)

Cases
- Bugmy v The Queen (2013) 249 CLR 517; [2013] HCA 37
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nguyen v R (2016) 256 CLR 656; [2016] HCA 17
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Brady (Court of Criminal Appeal (NSW), 3 March 1994, unrep)
- R v Fidow [2004] NSWCCA 172
- R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v McClymont (Court of Criminal Appeal (NSW), 17 December 1992, unrep)
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Nelson [2016] NSWCCA 130
- R v West [2014] NSWCCA 250
- R v Woods [2009] NSWCCA 55; (2009) 195 A Crim R 173
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Wakeling v R [2016] NSWCCA 33