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7
Court of Criminal Appeal 29 March 2019

RH v R

[2019] NSWCCA 64

Sexual offencesDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICATION FOR LEAVE TO APPEAL PARITY NO ERROR

Citation: RH v R [2019] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 29 March 2019
Judges: Hoeben CJ at CL, Schmidt J, Adamson J

Background

The applicant was the mother of the victim, a girl aged between 10 and 13 at the time of the offending. The applicant was convicted after trial of five serious sexual offences committed against her daughter, including two counts of aggravated sexual assault and two counts under a separate provision carrying the same maximum penalty, as well as one count of procuring a child under 14 for unlawful sexual activity.

The offending was committed in concert with the applicant's partner (referred to in the judgment as O), who was the principal perpetrator of the physical acts. The applicant's role included holding the victim down, directing the victim to comply, counselling the victim to lie to authorities, and using threats, bribes, and pressure to procure the victim for further sexual activity with O.

The sentencing judge (Wass DCJ) imposed an aggregate term of 16 years' imprisonment with a non-parole period of 11 years. The applicant sought leave to appeal the sentence on six grounds.

  • Whether the sentencing judge erred in assessing the objective seriousness of the applicant's offending, particularly by comparison with her co-offender O
  • Whether treating the victim's vulnerability as an aggravating factor amounted to impermissible double counting, given that age was already an element of the offences
  • Whether the sentencing judge erred by failing to treat the loss of the applicant's children as a form of extra-curial punishment (that is, punishment suffered outside the formal criminal justice process)
  • Whether the aggregate sentence was manifestly excessive
  • Whether the sentencing judge increased the aggregate sentence without giving reasons after it had already been perfected
  • Whether the parity principle (the principle that co-offenders should not receive unjustifiably disparate sentences) required a reduction in the applicant's sentence

Decision

Objective seriousness (Ground 2): The Court rejected the submission that the applicant's offending should have been assessed as well below the mid-range of seriousness. Schmidt J reviewed the detailed factual findings of the sentencing judge and confirmed that assessment of objective seriousness is a discretionary determination that an appellate court is slow to disturb. The applicant's active participation, including physically restraining the victim, directing her to comply, and procuring her for ongoing abuse, supported the sentencing judge's conclusions.

Double counting (Ground 3): The Court accepted that age was an element of the relevant offences, but held that the victim's particular vulnerability, arising from her position within the family and her relationship of dependence on the applicant as her mother, was a distinct feature that properly operated as a separate aggravating circumstance. No impermissible double counting was established.

Extra-curial punishment (Ground 4): The Court acknowledged the general principle that hardship suffered as a consequence of offending, beyond the formal sentence, may be taken into account in mitigation. However, it found that the loss of children in this case was a direct and foreseeable consequence of the applicant's offending and that the sentencing judge was not required to treat it as a mitigating factor warranting a reduction.

Increased aggregate sentence without reasons (Ground 6): The Court found that the sentence had been perfected when it was entered on the signed indictment. The later document did not represent an increase but reflected the same sentence. No error was established on this ground. On manifest excess and parity (Grounds 1 and 5), the Court found that the sentences imposed were not excessive and that, although O's sentence was itself lenient, that leniency had already been applied in a way that was favourable to the applicant. Reducing her sentence further would have produced a non-parole period that failed to reflect the proper purposes of punishment.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A mother's active participation in sexual offending against her child, including physical restraint and procuring the child for abuse, can properly support an assessment of objective seriousness at or near the mid-range even where the co-offender performed the acts of penetration.
  • Where a victim's vulnerability arises from a distinct relationship of dependence, such as the parent-child relationship, it may operate as a separate aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 even when age is already an element of the offence charged.
  • The parity principle does not require a court to reduce a sentence to an inadequate level simply because a co-offender received a lenient sentence; reducing a sentence to a level that would be an affront to the proper administration of justice is not required even where a grievance is established.
  • Loss of children as a consequence of offending is not automatically treated as extra-curial punishment warranting mitigation, particularly where that loss is a direct and foreseeable result of the offending itself.
  • A sentence is perfected when entered on the signed indictment under r 53.12 of the District Court Rules 1973 (NSW); subsequent documentation that is consistent with that record does not constitute an increase in sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 66C, 66EB
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- District Court Rules 1973 (NSW), r 53.12

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Dayment v R [2018] NSWCCA 132
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- GW v R [2018] NSWCCA 79
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Lloyd v R [2017] NSWCCA 303
- Markarian v The Queen (2008) 228 CLR 357
- Miles v R [2017] NSWCCA 266
- MRW v R [2011] NSWCCA 260
- Mulato v R [2006] NSWCCA 282
- Nguyen v The Queen (2016) 256 CLR 656
- Postiglione v The Queen (1997) 189 CLR 295
- Power v The Queen (1974) 131 CLR 623
- R v JW (2010) 77 NSWLR 7
- SAT v R [2009] NSWCCA 172
- SGJ v R; KU v R [2008] NSWCCA 258