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Court of Criminal Appeal 22 July 2020

AB v R

[2020] NSWCCA 170

Sexual offences
CRIMINAL LAW SENTENCE APPEAL GROUNDS OF APPEAL DRAFTED BY SELF REPRESENTED APPLICANT PAROLE PERIOD

Citation: AB v R [2020] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 22 July 2020
Judge(s): Hoeben CJ at CL, Adamson J, Bellew J (judgment delivered by Bellew J)

Background

The applicant pleaded guilty in the District Court to four counts of aggravated indecent assault of a person under 16 and one count of inciting a person under 16 to commit an act of indecency. The offending was committed against two young stepchildren across a period from 1996 to 1998, when the victims were aged between approximately 9 and 14. A further three offences were placed on a Form 1 and taken into account on sentence.

The offending involved repeated sexual touching of the female victim over an extended period, as well as incidents involving the male victim. The District Court sentenced the applicant to an aggregate term of 5 years' imprisonment with a non-parole period of 3 years and 6 months.

The applicant, who was unrepresented, sought leave to appeal against the sentence on grounds he drafted himself.

  • Whether the sentencing judge erred in assessing special circumstances (the power to adjust the ratio of parole to non-parole period)
  • Whether the sentencing judge intended a modest reduction in the non-parole period but failed to give effect to that intention
  • Whether the sentencing judge erred in assessing the applicant's prospects of rehabilitation
  • Whether the aggregate sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds, finding no error in the sentencing judge's exercise of discretion.

On the question of special circumstances, the Court found the sentencing judge had properly considered the issue. Her Honour reduced the non-parole period to a degree that reflected the relevant factors, and there was no basis to conclude she had failed to give effect to her stated intention.

On rehabilitation, the sentencing judge had relied on the report of a psychologist, Ms Godbee, which found that the applicant continued to hold distorted beliefs and had placed himself in high-risk situations, including taking up a role as a children's tennis coach. The Court found this reliance was appropriate and that the sentencing judge's conclusions on rehabilitation were soundly based on the evidence before her.

On manifest excess, the Court observed that the Crown had properly addressed this question even though the unrepresented applicant had not raised it in terms. The Court found the sentence was well within the available range, noting the offending was objectively serious, extended over a lengthy period, took multiple forms, and involved a gross breach of the applicant's position of trust as a stepfather within the family home.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in any of the grounds advanced by the self-represented applicant, confirming that the sentencing judge's exercise of discretion was within the appropriate range.
  • Where an applicant is unrepresented, the Crown properly addresses questions such as manifest excess even when that ground has not been expressly articulated by the applicant.
  • A sentencing court's findings on rehabilitation prospects can properly rest on expert psychological evidence, including where that evidence identifies ongoing distorted thinking and continued exposure to risk situations.
  • In dismissing the appeal, the Court confirmed that an aggregate sentence of 5 years with a non-parole period of 3 years and 6 months for this pattern of offending was well within the sentencing discretion available.
  • Under the relevant provisions of the Crimes Act 1900 (NSW), aggravated indecent assault of a person under 16 carries a maximum of 7 years' imprisonment, and the Court treated the breach of trust inherent in stepparental relationships as a significant aggravating factor.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(1) (aggravated indecent assault of person under 16, maximum 7 years)
- Crimes Act 1900 (NSW), s 61N(1) (inciting person under 16 to commit act of indecency, maximum 2 years)

Cases
- Bell v R [2019] NSWCCA 271
- Caristo v R [2011] NSWCCA 7
- Gumbleton v R [2017] NSWCCA 314
- Jiang v R [2010] NSWCCA 277
- Maglis v R [2010] NSWCCA 247
- Park v R [2020] NSWCCA 90
- R v Cramp [2004] NSWCCA 264
- R v Fidow [2004] NSWCCA 172
- R v Goodwin (1990) 51 A Crim R 328