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Court of Criminal Appeal 1 April 2019

CH v R

[2019] NSWCCA 68

Sexual offences

Citation: CH v R [2019] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 1 April 2019
Judge(s): Hoeben CJ at CL, Schmidt J, Adamson J

Background

The appellant pleaded guilty in the District Court to a series of sexual offences against his daughter, committed when she was aged four to five years old. The offences included sexual intercourse with a child under 10, attempted sexual intercourse with a child under 10, indecent assault, inciting acts of indecency, and using a child to produce child abuse material. Several additional offences were taken into account under the Form 1 procedure (meaning they were formally acknowledged at sentencing without separate punishment, but used to increase the sentence for the primary offences).

Bright DCJ imposed an aggregate sentence of 20 years imprisonment with a non-parole period of 13 years, after applying a 25 per cent discount for the appellant's early guilty plea. That reflected a starting point of approximately 26 years and 8 months.

The appellant sought leave to appeal that sentence on four grounds: errors concerning the Form 1 maximum penalties, the treatment of remorse, the application of the totality principle, and alleged manifest excess.

  • Whether the sentencing judge erred by failing to give proper regard to the maximum penalties applicable to the Form 1 offences, specifically whether those penalties were reduced because the offences were dealt with summarily before the District Court
  • Whether the sentencing judge erred in giving only "limited weight" to the evidence of remorse, or failed to make a finding on remorse at all
  • Whether the sentencing judge misapplied the principle of totality when arriving at the aggregate sentence
  • Whether the aggregate sentence of 20 years was manifestly excessive

Decision

Ground 1: Maximum penalties for Form 1 offences. The appellant argued that because some of his Form 1 offences were indictable offences dealt with summarily, the applicable maximum penalties were reduced to those that would apply in the Local Court. Schmidt J rejected this. Sections 165, 166, and 167 of the Criminal Procedure Act 1986, which govern related offences dealt with on committal or sentence, do not reduce the maximum penalties for indictable offences simply because they are handled summarily. The Form 1 process under s 33 of the Crimes (Sentencing Procedure) Act operates separately and does not alter this position. Her Honour found that the sentencing judge was required to have regard to the maximum penalty and any standard non-parole period for each Form 1 offence when calibrating by how much the primary sentence should be increased, and Bright DCJ had done so correctly.

Grounds 2 and 3: Remorse and totality. The Court found no error in the sentencing judge's approach to remorse. Bright DCJ had acknowledged evidence of remorse but given it limited weight, a conclusion open on the facts. No failure to make a finding was established. On totality, the Court compared the aggregate sentence with sentences imposed in other analogous cases, including cases involving serious and prolonged child sexual abuse. Nothing in that comparison demonstrated that Bright DCJ had failed to apply the totality principle correctly.

Ground 4: Manifest excess. The Court found the sentence was not manifestly excessive. Schmidt J noted the offending involved very grave criminality, a deliberate exploitation of the extreme vulnerability of a very young child. The Court confirmed that intervention on a manifest excess ground is only warranted where it can be concluded that a misapplication of principle must have occurred. No such conclusion was available here. The sentencing judge had properly considered all relevant factors, including objective seriousness, moral culpability, aggravating and mitigating circumstances, specific and general deterrence, and the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Sections 165, 166, and 167 of the Criminal Procedure Act 1986 do not reduce the maximum penalties for indictable offences handled as related offences and taken into account under the Form 1 procedure. The sentencing court must still have regard to the full indictable maximum when determining the sentence uplift.
  • Under the Form 1 process, the sentencing court is required to increase the sentence for the primary offence by giving greater weight to personal deterrence and community retribution, but cannot exceed the maximum penalty for the primary offence, per s 33(3) of the Crimes (Sentencing Procedure) Act.
  • A sentencing judge may give limited weight to evidence of remorse without committing error, provided the reasons disclose that the matter was considered.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that intervention requires a conclusion that a misapplication of principle must have occurred, consistent with the standard in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [59].
  • Comparing an impugned sentence against others in analogous cases is part of the review process, but differences in offending patterns (such as proximity in time of offences or the age of the victim) may limit the value of direct comparisons.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 61O, 66A, 66B, 91G
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 33
- Criminal Procedure Act 1986 (NSW), ss 165, 166, 167, 168

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- House v The King (1936) 55 CLR 499
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Collins v R [2010] NSWCCA 13
- ZA v R [2017] NSWCCA 132
- TO v R [2017] NSWCCA 12; 265 A Crim R 191
- Van Zwam v R [2017] NSWCCA 127
- Imbornone v R [2017] NSWCCA 144
- R v MJB [2014] NSWCCA 195
- Bao v R [2016] NSWCCA 16
- Kerr v R [2016] NSWCCA 218
- Butters v R [2010] NSWCCA 1
- Carlton v The Queen (2008) 189 A Crim R 332
- R v Dunn [2004] NSWCCA 41; 144 A Crim R 180