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Court of Criminal Appeal 10 May 2019

ME v R

[2019] NSWCCA 91

Sexual offencesDomestic & family violence
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: ME v R [2019] NSWCCA 91
Court: Court of Criminal Appeal, NSW
Date: 10 May 2019
Judges: Macfarlan JA, R A Hulme J, Davies J

Background

The applicant pleaded guilty in the Newcastle Local Court to five aggravated sexual offences committed against his biological daughter over several years, beginning when she was approximately 11 years old and continuing until she was 15. The offences included repeated sexual intercourse with a child aged between 10 and 14 years (three counts), inciting a person under 16 to commit an act of indecency, and sexual intercourse with a child aged between 14 and 16 years. Five further offences were taken into account by the sentencing judge on a Form 1 (a formal document listing additional offences an offender asks the court to consider when imposing sentence, without those offences being separately convicted or punished).

The matter was committed to the District Court, where Judge Berman SC imposed an aggregate sentence of 18 years' imprisonment with a non-parole period of 13 years and six months. Indicative sentences were set for each offence, including eight years and six months for sequence 13, the offence of aggravated sexual intercourse with a child aged between 14 and 16 years.

The applicant sought leave to appeal on a single ground: that the sentencing judge had made a patent error in relation to the indicative sentence for sequence 13, causing the sentencing discretion to miscarry.

  • Whether the sentencing judge misdescribed the offence in sequence 13 in the Remarks on Sentence, wrongly characterising it as an offence against children aged 10 to 14 rather than 14 to 16 years.
  • Whether any such misdescription caused the sentencing discretion to miscarry, meaning that the indicative sentence imposed did not reflect a correct understanding of the applicable maximum penalty and standard non-parole period.

Decision

The Court accepted that the sentencing judge had used an incorrect description of sequence 13 at one point in the Remarks on Sentence, referring to the offence as one covered by the provision for children aged between 10 and 14, when in fact it was an offence against a child aged between 14 and 16. The maximum penalties differ significantly: 20 years with a standard non-parole period of nine years for the former, and 12 years with a standard non-parole period of five years for the latter.

However, Davies J (with whom Macfarlan JA and R A Hulme J agreed) found that reading the Remarks as a whole made clear the judge correctly understood which offence he was sentencing. The Remarks expressly referred to a "last offence" involving a person aged 14 to 16, and separately noted that the act of intercourse causing the complainant's pregnancy was "another act of aggravated sexual intercourse with a person between the ages of 14 and 16." The judge plainly knew the victim was 15 at the time of the offence in sequence 13.

The Court also found the indicative sentence itself confirmed no error had occurred. The notional starting point for sequence 13, after accounting for the 25% discount for an early guilty plea, was approximately 11 years and four months. This figure is entirely consistent with a sentence approaching the most serious form of an offence carrying a 12-year maximum, not with a sentence calibrated against a 20-year maximum. The erroneous description in the Remarks was characterised as a slip of the tongue rather than a misunderstanding of the applicable legislative framework.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A misdescription of an offence in Remarks on Sentence does not automatically establish a sentencing error; the Remarks must be read as a whole to determine whether the judge correctly understood the applicable offence and its legislative guideposts.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an indicative sentence pitched just below the maximum penalty is consistent with a finding that the offending approached, but did not reach, the worst category of that offence.
  • Where a notional starting point (before discount for a guilty plea) is clearly calibrated against the correct maximum penalty, that provides strong evidence the sentencing judge was not operating under a misapprehension about which offence was being sentenced.
  • No error was established merely because the sentencing judge used incorrect language in one passage of the Remarks, when surrounding passages demonstrated accurate identification of the offence, the victim's age, and the relevant statutory provision.
  • The standard non-parole period is a legislative "guidepost" (a benchmark, not a mandatory minimum) relevant to assessing objective seriousness; a court's indicative sentence must be consistent with how it has characterised the seriousness of the offending relative to that benchmark.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C(2) (aggravated sexual intercourse with child aged 10 to 14; maximum 20 years, standard non-parole period 9 years)
- Crimes Act 1900 (NSW), s 66C(4) (aggravated sexual intercourse with child aged 14 to 16; maximum 12 years, standard non-parole period 5 years)
- Crimes Act 1900 (NSW), s 610(1) (now repealed: inciting a person under 16 to commit an act of indecency in circumstances of aggravation; maximum 5 years)

Cases cited: None identified in the judgment.