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Court of Criminal Appeal 3 July 2020

R v LS; R v MH

[2020] NSWCCA 148

Sexual offencesAssault & violencePublic order & justice offences
CRIME SENTENCE APPEAL AGGRAVATED INDECENT ASSAULT INCITE ACT OF INDECENCY RESPONDENTS STEP FATHER AND MOTHER OF CHILD VICTIM

Citation: R v LS; R v MH [2020] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 3 July 2020
Judges: Bell P, Davies J, Wilson J

Background

The two respondents are husband and wife. Their offending came to the attention of police after concerned family members reported their activities to authorities. The couple were arrested in February 2019 and charged with a series of child abuse material and assault offences involving their very young children, including a daughter born in February 2017 and a son born in May 2018.

The offending included disseminating and possessing child abuse material depicting the penetration of a young child, producing child abuse material through explicit messaging exchanges, physically using a child under 14 in the production of child abuse material, aggravated indecent assault of one of the children, and inciting acts of indecency. The step-father (LS) and the mother (MH) each pleaded guilty, both in the Local Court and later in the District Court.

At sentence in the District Court at Port Macquarie in March 2020, LS received an aggregate term of 4 years imprisonment with a non-parole period of 18 months, and MH received an aggregate term of 3 years imprisonment with a non-parole period of 21 months. The Director of Public Prosecutions appealed both sentences to the Court of Criminal Appeal, contending they were manifestly inadequate.

  • Whether the aggregate sentences imposed on each respondent were so low as to be manifestly inadequate
  • Whether the sentencing judge erred in her assessment of the objective gravity of the offending conduct
  • Whether errors in the sentencing judge's approach warranted the Court of Criminal Appeal intervening and resentencing each respondent

Decision

The Court of Criminal Appeal upheld both Crown appeals, finding that the sentences imposed by the District Court were manifestly inadequate. Wilson J (with Bell P and Davies J agreeing) concluded that the sentencing judge had erred in her assessment of the objective gravity of the offending. The offending was characterised by the extreme youth of the victims, who were infants at the time, and by a gross abuse of the parental trust placed in both respondents.

The Court found that the sentencing judge had not adequately reflected the seriousness of the offences, particularly those involving the physical use of a child under 14 to produce child abuse material and the aggravated indecent assault. These were treated by the Court as among the most serious categories of offending of their type, warranting substantially higher sentences than those originally imposed.

Wilson J set out indicative individual sentences for each offence before constructing new aggregate sentences. For LS, the most serious indicative sentence was 6 years imprisonment with a non-parole period of 3 years for the aggravated indecent assault charge. For MH, the most serious indicative sentence was 3 years imprisonment with a non-parole period of 1 year and 9 months for consenting to the use of a child under 14 to produce child abuse material.

Orders Made

  • The Crown's appeal against LS's sentence was upheld; the District Court sentence was quashed
  • LS was resentenced to an aggregate term of 7 years imprisonment, dating from 6 February 2019 and expiring 5 February 2026, with a non-parole period of 3 years and 6 months expiring 5 August 2022
  • The Crown's appeal against MH's sentence was upheld; the District Court sentence was quashed
  • MH was resentenced to an aggregate term of 5 years imprisonment, dating from 6 February 2019 and expiring 5 February 2024, with a non-parole period of 3 years expiring 5 February 2022

Key Takeaways

  • The Court of Criminal Appeal confirmed that the extreme youth of child victims and the abuse of parental trust are weighty aggravating factors that must be adequately reflected in sentencing for child abuse material and assault offences.
  • Manifest inadequacy was established where the sentencing judge failed to correctly assess the objective gravity of offending involving infants being physically used to produce child abuse material, prompting the appellate court to intervene and resentence.
  • Under the Crown appeal jurisdiction in s 5D of the Criminal Appeal Act 1912 (NSW), the appellate court quashed the original sentences and substituted significantly higher aggregate sentences, nearly doubling the term imposed on LS and increasing MH's term by two years.
  • Offences under s 91G(1)(c) of the Crimes Act 1900 (NSW), which carries a maximum of 14 years imprisonment and a standard non-parole period of 6 years, were treated by the Court as among the most objectively serious charges on the indictment in this matter.
  • Pleas of guilty and other subjective factors were taken into account, but the Court found they did not justify sentences at the level originally imposed given the gravity of the conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61N(2), 91G(1)(c), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44(2)
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Doumit v R [2011] NSWCCA 134
- Faehringer v R [2017] NSWCCA 248
- Green v R; Quinn v R (2011) 244 CLR 462
- Imbornone v R [2017] NSWCCA 144
- LS v R [2020] NSWCCA 27
- R v Booth [2009] NSWCCA 89
- R v CTG [2017] NSWCCA 163
- R v Hutchinson [2018] NSWCCA 152
- R v PGM (2008) 187 A Crim R 152
- The Queen v De Simoni (1981) 147 CLR 383
- WM v R [2020] NSWCCA 96
- Woodward v R [2017] NSWCCA 44