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10
Court of Criminal Appeal 20 July 2020

JJ v R

[2020] NSWCCA 165

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESS IVE APPEAL DISMISSED

Citation: JJ v R [2020] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 20 July 2020
Judge(s): Hoeben CJ at CL; Fagan J; Cavanagh J

Background

The applicant had been in a domestic relationship with the victim's mother from around 2010, and had a daughter together with her. In October or November 2016, when the victim was 14 years old, the applicant entered the family home while the victim was alone. He dragged her to her bedroom by force, punched her when she resisted, and committed penile-vaginal intercourse without her consent. After the assault, he placed both hands around her neck and threatened to kill her if she told her mother.

The victim remained silent for approximately a year, out of fear, before disclosing the assault to a partner who supported her in reporting it to family and then police. The applicant was arrested in September 2017 and tried at Bega in November 2018, where a jury found him guilty of one count of aggravated sexual intercourse without consent under s 61J(1) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that the victim was under 16.

In February 2019, Judge Colefax SC sentenced the applicant to 12 years imprisonment with a non-parole period of 9 years. The applicant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentence of 12 years imprisonment with a 9-year non-parole period was manifestly excessive for a single offence of aggravated sexual intercourse without consent.
  • Whether the sentencing judge's assessment of the offence as mid-range in objective seriousness was open on the facts.
  • Whether comparison with sentences imposed in other cases demonstrated that the sentence was excessive.

Decision

The Court of Criminal Appeal reviewed the principles governing manifest excess appeals, drawn from Dinsdale v The Queen and subsequent High Court authority. Appellate intervention is not justified merely because the result differs markedly from sentences in other cases. A sentence is manifestly excessive only where the appellate court can discern, from the result itself, that some error must have occurred in the exercise of the sentencing discretion.

The Court identified several features that contributed to the severity of the sentence. The offence involved not only the sexual assault itself but significant accompanying physical violence, including punching and forcible restraint. The applicant then threatened to kill the victim if she disclosed the assault, which effectively prevented her from seeking support in the aftermath and may have deepened her psychological harm.

The applicant's complete absence of remorse was also a significant factor. His denial continued throughout sentencing proceedings and was reinforced by his family's rejection of the victim's account. The sentencing judge could not identify any basis for a favourable finding on rehabilitation prospects, and the Court of Criminal Appeal found no error in that conclusion.

The Court accepted that the sentencing judge's mid-range assessment of objective seriousness was open on the facts. The statutory standard non-parole period of 10 years served as an important legislative guide, and the Court was not persuaded that the sentence of 12 years, with a 9-year non-parole period, was outside the permissible range when all relevant features were taken into account.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence will not be regarded as manifestly excessive simply because it is higher than sentences imposed in comparable cases, provided differences in the individual features of those cases are properly acknowledged.
  • A sentencing court's assessment of objective seriousness, where open on the facts, will not be disturbed on appeal merely because other assessments were available.
  • The statutory standard non-parole period functions as a significant legislative guide in fixing an appropriate sentence, particularly where a judge finds the offence falls within the mid-range of seriousness.
  • Accompanying physical violence, threats designed to silence the victim, and an absence of remorse are factors that can independently elevate the seriousness of a sexual assault offence and diminish prospects of rehabilitation.
  • No causal connection between an offender's mental health conditions and the commission of the offence is required for those conditions to be considered at sentencing, but without such a connection they carry limited mitigating weight.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61J(2)(d)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Aloniu v R [2017] NSWCCA 74
- Enriquez v R [2012] NSWCCA 60
- FB v R [2011] NSWCCA 217
- Wright v R [2019] NSWCCA 134