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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 [1981] HCA 31 DISCUSSED CRIMINAL LAW SENTENCE

Citation: Davies v R [2019] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 8 March 2019
Judges: Basten JA at [1]; Johnson J at [64]; R A Hulme J at [74]

Background

The appellant was a dance studio operator who pleaded guilty to 27 counts of sexual offences against nine children, and one count of possessing child abuse material. The offending spanned 13 years (2001 to 2013) and involved students under his instruction. A further 19 offences were taken into account on Form 1 documents.

In October 2016, the District Court sentenced the appellant to an aggregate term of 24 years imprisonment with a non-parole period of 18 years, backdated to May 2013 when he was taken into custody. The sentencing judge indicated what individual sentences would have been imposed for each count and applied a uniform 12.5% discount across all counts to reflect the pleas of guilty.

After several extensions of time, the appellant sought leave to appeal on five grounds. One ground was abandoned. The remaining grounds challenged the identification of aggravating factors, the utilitarian discount applied for guilty pleas, and whether the indicative and aggregate sentences were manifestly excessive.

  • Whether the sentencing judge erred by treating the young age of victims as a separate aggravating factor ("vulnerability") when age was already an element of the charged offences, contrary to the principle in The Queen v De Simoni (1981) 147 CLR 383
  • Whether the sentencing judge erred by treating the appellant's position of authority over the victims as an aggravating factor for offences under s 66C(1) of the Crimes Act 1900, when that circumstance was an element of the more serious offence under s 66C(2)
  • Whether the sentencing judge was required to state the discount applied to the aggregate sentence, and whether applying a uniform discount to all indicative sentences was erroneous
  • Whether the judge failed to account for early offers to plead guilty when fixing the discount, despite pleas not being formally entered until later
  • Whether the indicative individual sentences and the aggregate sentence were manifestly excessive

Decision

Ground 2: Aggravating factors. The Court found that the ground had sufficient merit to warrant a grant of leave to appeal. The De Simoni principle prohibits a sentencing court from treating as an aggravating circumstance a factor that would expose the offender to liability for a more serious offence carrying a greater maximum penalty. The two limbs of the ground concerned, first, treating victim vulnerability arising from young age as a separate aggravating factor when age was an element of the charged offence, and second, treating the appellant's authority over the victims as an aggravating factor for counts charged under s 66C(1), when that authority was precisely what elevated the conduct to the more serious offence under s 66C(2). The Court examined both limbs carefully, distinguishing between "abuse of trust" and "abuse of authority" as separate concepts with different legal consequences for the aggravation analysis.

Ground 3: Guilty plea discount. The Court considered whether the sentencing judge was required to articulate the discount applied to the aggregate sentence and whether a uniform discount of 12.5% across all indicative sentences was appropriate. The Court also examined whether the judge adequately accounted for the timing of the pleas, including the significance of early offers to plead that were made before the formal entry of pleas. The discount question was regarded as marginal in isolation, and leave to appeal on this ground was granted only because of its connection to the other grounds.

Grounds 4 and 5: Manifest excess. The Court noted that technically no "sentences" are imposed for individual counts when an aggregate sentence is ordered; the judge is instead required under s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 to indicate what sentences would have been imposed for each offence separately. Errors in those indicative sentences can, however, infect the aggregate. The Court considered both the indicative figures and the overall aggregate sentence of 24 years in light of the identified errors, and granted leave to appeal on this basis given the length of the sentence imposed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The De Simoni principle applies to prevent a sentencing court from using as an aggravating factor any circumstance that would have exposed the offender to conviction for a more serious offence with a higher maximum penalty. The principle requires careful analysis of the specific elements of both the charged offence and the more aggravated variant.
  • A distinction exists between "abuse of trust" and "abuse of authority" as aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999. The Court examined whether the position of a dance instructor constituted authority within the meaning of the relevant statutory provision, and whether using it as an aggravating factor for s 66C(1) offences was precluded by the fact that authority was an element of the more serious s 66C(2) offence.
  • Where aggregate sentencing is used under the Crimes (Sentencing Procedure) Act 1999, the individual indicative sentences are not sentences in the strict legal sense, but errors in those indicative figures can provide a ground of appeal if they affect the overall aggregate.
  • Under s 22 of the Crimes (Sentencing Procedure) Act 1999, courts are required to give appropriate weight to the utilitarian value of guilty pleas, including the timing of any offer to plead even where formal pleas were entered at a later stage. A uniform discount across all counts is permissible where all pleas are entered simultaneously, but the basis for the discount must properly reflect the history of the plea negotiations.
  • Appellate review of a discount for guilty pleas, standing alone, is unlikely to meet the threshold for leave to appeal. The Court of Criminal Appeal indicated that it would not have granted leave on the discount ground in isolation; it did so only because of the interrelationship with the manifest excess grounds.

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
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- 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
- Kassoua v R [2017] NSWCCA 307
- McIntosh v R [2015] NSWCCA 184
- 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