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29
Court of Criminal Appeal 3 June 2020

FL v R

[2020] NSWCCA 114

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE ASSESSMENT OF OBJECTIVE GRAVITY WHETHER ERROR IN “GLOBAL ASSESSMENT”

Citation: FL v R [2020] NSWCCA 114
Court: Court of Criminal Appeal, NSW
Date: 3 June 2020
Judge(s): R A Hulme J, Hamill J, Wilson J (Wilson J delivering the principal judgment)

Background

The applicant, FL, was convicted and sentenced in the District Court of New South Wales in relation to four charges of aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW). The offending was perpetrated against his step-daughter, who was between 15 and 16 years of age at the time. The circumstances of aggravation were either the complainant's age or that she was under the applicant's authority.

The sentencing court also took into account, on two Form 1 documents, a further six counts of aggravated indecent assault. The offending commenced in February 2017 and involved repeated acts of sexual violence, including penile rape on multiple occasions, occurring over a period of weeks within the family home.

Judge O'Rourke SC imposed an aggregate sentence of 14 years and 6 months imprisonment, with a non-parole period of 10 years. The applicant had pleaded guilty and had no relevant criminal history. He sought leave to appeal against sentence on two grounds.

  • Whether the sentencing judge erred in assessing the objective gravity of the offending "globally" rather than offence by offence, and whether such an assessment was required to be expressed by reference to a position within a range.
  • Whether the aggregate sentence of 14 years and 6 months imprisonment was manifestly excessive, having regard to the applicant's pleas of guilty, lack of criminal history, and the sentences imposed in comparable cases.

Decision

Ground 1: Global Assessment of Objective Gravity

The Court of Criminal Appeal refused leave to appeal on the first ground. Wilson J found that the sentencing judge's approach to assessing objective gravity was orthodox and consistent with the High Court's framework in Muldrock v The Queen (2011) 244 CLR 120. The sentencing judge had identified the features of the offending relevant to objective gravity, considered the standard non-parole period as a legislative signpost, and was not required to express her assessment by nominating a specific position within a range. No error of principle was established.

Ground 2: Manifest Excess

Leave to appeal on the second ground was granted, but the appeal was dismissed. Wilson J undertook a careful analysis of the comparable sentencing decisions and statistics tendered by the applicant. While the sentence was characterised as stern and toward the upper end of the range one might expect, it could not fairly be described as manifestly outside that range or plainly wrong.

The Court emphasised that comparing sentences across cases is not an arithmetic exercise. Consistency in sentencing means consistency in the application of principles, not mechanical addition or subtraction of years by reference to factual similarities or differences between decided cases. The gravity of the offending, which involved repeated serious sexual abuse of a young step-daughter within the family home, warranted a stern sentence to reflect denunciation, punishment, recognition of harm, and general deterrence.

Hamill J agreed, noting that although the sentence was very severe, particularly given the pleas of guilty and absence of relevant criminal history, the diligent collection of comparable cases by the applicant's legal representatives did not ultimately demonstrate that the sentence fell outside permissible bounds.

Orders Made

  • Leave to appeal on ground one refused.
  • Leave to appeal on ground two granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge assessing objective gravity is not required to express that assessment by identifying a specific position within a sentencing range; identifying the relevant features and applying the standard non-parole period as a legislative signpost is sufficient, consistent with Muldrock.
  • A "global" assessment of objective gravity across multiple related offences is not necessarily erroneous where the sentencing approach is otherwise orthodox and the relevant features of the offending are properly identified.
  • Sentencing statistics and comparable cases function as a yardstick against which to examine a proposed sentence, not as fixed outer bounds on the permissible exercise of discretion, as confirmed by reference to Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2.
  • No error is established merely because a sentence sits toward the upper end of an expected range; the test for manifest excess requires the sentence to be plainly wrong or unjust by reference to current sentencing patterns.
  • In dismissing the appeal, the Court confirmed that the combination of repeated serious sexual abuse of a child within a position of familial trust, though moderated by guilty pleas and the absence of prior offending, can justify a substantial aggregate sentence in the mid-to-upper range of comparable outcomes.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 305 ALR 323
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Dodd (1991) 57 A Crim R 349
- R v Ellis (1986) 6 NSWLR 603
- RC v R; R v RC [2020] NSWCCA 76
- RH v R [2019] NSWCCA 64
- GW v R [2018] NSWCCA 79
- RL v R [2018] NSWCCA 74
- DG v R [2017] NSWCCA 139
- R v XX [2017] NSWCCA 90
- AGF v R [2016] NSWCCA 236
- Erazo v R [2016] NSWCCA 139
- RJB v R [2015] NSWCCA 93
- MRM v R [2015] NSWCCA 195
- R v DAJ [2012] NSWCCA 143
- R v GWM [2012] NSWCCA 240
- PK v R [2012] NSWCCA 263
- DJM v R [2013] NSWCCA 10
- MRW v R [2011] NSWCCA 260