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7
Court of Criminal Appeal 8 March 2019

Davies v R

[2019] NSWCCA 45

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL OFFENCES AGAINST CHILDREN VULNERABILITY AS AN AGGRAVATING FACTOR HCA 31 DISCUSSED CRIMINAL LAW PLEAS OF GUILTY

Citation: Davies v R [2019] NSWCCA 45
Court: Court of Criminal Appeal
Date: 08 March 2019
Judge(s): Basten JA at [1]; Johnson J at [64]; R A Hulme J at [74]

Background

The applicant operated a dance studio and over a 13-year period between 2001 and 2013 sexually offended against nine of his young students, aged between 9 and 15 years. He pleaded guilty in September 2015 to 27 counts of sexual offences and one count of possessing child abuse material, with a further 19 offences taken into account on Forms 1.

In October 2016, the District Court sentenced the applicant to an aggregate term of 24 years imprisonment with a non-parole period of 18 years. The sentencing judge indicated putative individual sentences for each offence and applied a uniform discount of 12.5% for pleas of guilty across all counts.

The applicant sought leave to appeal out of time on five grounds, one of which was abandoned. The remaining grounds challenged the treatment of aggravating factors, the discount applied for guilty pleas, and whether the individual and aggregate sentences were manifestly excessive.

Legal Issues

  • Whether the sentencing judge erred by treating the victims' young age as a factor of vulnerability under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, when age was already an element of the offences charged.
  • Whether the sentencing judge contravened the principle in The Queen v De Simoni (1981) 147 CLR 383 by treating abuse of authority or trust as an aggravating circumstance when sentencing for the non-aggravated form of an offence under s 66C(1) of the Crimes Act 1900.
  • Whether the sentencing judge erred in applying a uniform 12.5% discount to all offences rather than varying the discount by reference to the timing and nature of individual plea negotiations.
  • Whether the individual indicative sentences were manifestly excessive.
  • Whether the aggregate sentence of 24 years was manifestly excessive.

Decision

Ground 2(a): Vulnerability as an aggravating factor

The Court held that vulnerability based on young age is not an element of the relevant sexual assault offences; the element is simply age. Although young age is a source of vulnerability, neither vulnerability nor very young age constitutes an element that attracts the double-counting prohibition in s 21A(2) (at [24]). The Court reasoned that the offences involved victims across a range of ages from 10 to 16, and a sentencing judge is entitled to treat a younger child within that range as more vulnerable than an older child without committing error (at [24]). No error was established on this limb.

Ground 2(b): Abuse of authority versus abuse of trust

The applicant contended that taking abuse of authority into account when sentencing for s 66C(1) offences (where authority over the victim is an element of the aggravated form under s 66C(2)) violated the De Simoni principle. The Court acknowledged the conceptual tension but rejected the ground. The sentencing judge's reasoning referred to abuse of trust, formulated in the agreed facts as the trust placed by victims' parents in the applicant when allowing their children to stay at his home, which was factually distinct from the professional authority exercised at the dance studio (at [36]). The Court declined to resolve precisely how far De Simoni extends in a plea-based sentencing proceeding, noting the issue is not beyond doubt (at [34]), but found no appellable error on the facts (at [37]).

Ground 3: Discount for pleas of guilty

The applicant argued that a uniform 12.5% discount was inappropriate and that the benefit of the discount was effectively lost in the aggregation process. The Court rejected both aspects. On the uniformity point, Bao v R [2016] NSWCCA 16 is authority against a single averaged discount only where different groups of offences attract materially different discounts; it does not require different discounts where all pleas were entered at the same time and the chronology of negotiations was imprecise (at [47]). On the "lost in aggregation" point, R A Hulme J clarified that the real question in a severity appeal is whether the aggregate sentence is manifestly excessive, not whether discounts were diluted in the accumulation process (at [77]).

Grounds 4 and 5: Manifest excess

The Court found the individual indicative sentences were carefully calibrated to reflect the varying seriousness of each offence and could not be characterised as manifestly excessive (at [59]). Turning to the aggregate, the offending spanned over a decade, involved nine victims, multiple serious offences, grooming and manipulative conduct, and continued after the applicant had been placed on notice by police in 2007 that his conduct involved serious criminal activity (at [53], [60]). The aggregate sentence of 24 years was severe but not disproportionate to the nature and extent of the offending (at [62]).

Orders Made

  • Extension of time for filing the application for leave to appeal granted.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A victim's young age can constitute vulnerability as an aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 without offending the prohibition on double-counting, provided the sentencing court distinguishes between vulnerability derived from age and age itself as an element of the offence (at [24]).

  • The De Simoni principle, which prevents a court from taking into account an unpleaded circumstance that would have attracted a higher maximum penalty, operates with some uncertainty in plea-based proceedings where agreed facts describe conduct that resembles an element of an aggravated offence; however, the concepts of abuse of trust and abuse of authority remain legally distinct and a sentencing court may take the former into account even where the latter is an element of an aggravated charge (at [31]-[37]).

  • A uniform guilty plea discount applied to multiple offences is not necessarily erroneous: Bao v R requires differential discounts only where different groups of offences are demonstrably entitled to materially different discounts because of differently timed pleas (at [47]).

  • In a severity of sentence appeal involving an aggregate sentence, the Court of Criminal Appeal confirmed that the operative question is whether the overall sentence is manifestly excessive, not whether discounts applied to indicative sentences were preserved through the accumulation process (at [77]).

  • Offending characterised by repeated sexual exploitation of multiple young students over more than a decade, accompanied by grooming, manipulation and continuation after police intervention, supported an aggregate custodial sentence at the serious end of the range without that sentence being held manifestly excessive (at [60]-[62]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M, 66A, 66C, 66EB, 91H
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 53A, 54B
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Criminal Code (WA), s 582

Cases
- Bao v R [2016] NSWCCA 16
- Elyard v Regina [2006] NSWCCA 43; (2006) 45 MVR 402
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- Kassoua v R [2017] NSWCCA 307
- McIntosh v R [2015] NSWCCA 184
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- MRW v R [2011] NSWCCA 260
- PG v R [2017] NSWCCA 179
- Prculovski v R [2010] NSWCCA 274
- R v Gavel [2014] NSWCCA 56; 239 A Crim R 469
- R v Nykolyn 2012] NSWCCA 219
- Suleman v R [2009] NSWCCA 70
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31