AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 29 July 2020

AT v R

[2020] NSWCCA 178

Sexual offences
CRIME SENTENCE APPEAL APPLICATION FOR EXTENSION OF TIME CHILD 19 MONTHS OLD APPLICANT IN A POSITION OF TRUST

Citation: AT v R [2020] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 29 July 2020
Judges: Simpson AJA, Bellew J, Wilson J (all agreeing with Wilson J)

Background

The applicant, referred to as AT, was convicted by a jury in the District Court at Newcastle in September 2016 of sexual intercourse with a child under ten years of age, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The victim was a 19-month-old girl, the daughter of the applicant's then partner, with whom he was living at the time of the offence. The act involved digital penetration and occurred while the applicant was in a position of trust toward the child.

The sentencing judge imposed a term of 8 years' imprisonment with a non-parole period of 5 years, dating from 3 September 2016. The applicant sought leave to appeal against that sentence, substantially out of time, having waited several years before prosecuting his appeal. The Court noted there was no adequate explanation for the lengthy delay, describing it as unacceptable both from the Court's perspective and that of the community.

The applicant advanced three proposed grounds of appeal: that the sentencing judge took into account actual bodily harm as an aggravating feature improperly; that the judge failed to find the offence was out of character; and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by taking into account actual bodily harm occasioned to the victim as an aggravating factor (Ground 1)
  • Whether the sentencing judge erred by failing to find that the offence was out of character (Ground 2)
  • Whether the sentence of 8 years' imprisonment with a 5-year non-parole period was manifestly excessive (Ground 3)

Decision

The Court of Criminal Appeal refused leave to advance Grounds 1 and 2. On Ground 1, the Court found no error in the sentencing judge's treatment of the physical injury. Her Honour had explicitly noted that the injuries had resolved without medical intervention by the time of a second examination, treating the physical harm as a relatively minor aspect of the offending rather than as a separately aggravating feature. On Ground 2, the Court was not satisfied that the sentencing judge was required to make a formal finding that the offence was out of character; the relevant personal background had been addressed in the sentencing remarks.

On Ground 3, the Court found that the sentence of 8 years was manifestly excessive, placing it outside the available range and thus constituting error, described as "latent error." In reaching this conclusion, Wilson J weighed the serious objective features of the offending (the extreme youth and vulnerability of the victim, the breach of trust, and the concealment afforded by the victim's inability to complain) against the mitigating features (the finding that the offence fell below the mid-range of objective gravity, the applicant's low assessed risk of sexual recidivism, his prior rehabilitation from earlier minor offending, and his positive personal history and community contributions).

The Court reaffirmed the principle that offences of this nature, involving very young and wholly vulnerable victims, require stern sentences for the purposes of denunciation and both specific and general deterrence. However, it concluded that the sentence imposed exceeded the minimum required to fulfil those purposes. The Court also granted the extension of time to appeal, while making plain that the absence of any proper explanation for the years-long delay was a matter the Court viewed seriously.

Orders Made

  • Extension of time granted in which to file an application for leave to appeal, to 3 February 2020
  • Leave to advance Grounds 1 and 2 refused
  • Leave to advance Ground 3 granted
  • Appeal upheld
  • Sentence imposed in the District Court quashed and, in lieu, the applicant sentenced to imprisonment for 6 years and 6 months, dating from 3 September 2016 and expiring on 2 March 2023, with a non-parole period of 4 years and 3 months, expiring on 2 December 2020

Key Takeaways

  • A sentence for sexual intercourse with a child under ten may be found manifestly excessive even where the offending involves serious aggravating features, if the overall sentence exceeds the minimum required to achieve the purposes of sentencing including denunciation and deterrence.
  • Under s 66A(1) of the Crimes Act 1900 (NSW) (as it stood at the time), the extreme youth and vulnerability of the victim, combined with a position of trust, are significant factors going to objective gravity, but they do not automatically place an offence above the mid-range of seriousness.
  • The Court of Criminal Appeal confirmed that courts have consistently required stern sentences for offences against very young children, in part because their vulnerability makes them targets for those confident of escaping detection, and deterrence of others is a weighty consideration.
  • Granting an extension of time to appeal out of time does not signal any diminution of the Court's concern about unexplained delay; the absence of a proper explanation was characterised as unacceptable, particularly given the impact on those most affected by the proceedings.
  • Where a sentencing judge's remarks address an offender's personal background and the question of character, a failure to make a discrete formal finding that the offence was "out of character" does not necessarily constitute a sentencing error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Barbaro v The Queen (2014) 253 CLR 58
- Dinsdale v The Queen (2000) 202 CLR 321
- EG v R [2015] NSWCCA 21
- Hili v The Queen (2010) 242 CLR 520
- Muldrock v The Queen (2011) 244 CLR 120
- Obeid v R (2017) 96 NSWLR 155
- PS v R [2015] NSWCCA 20
- R v AJP [2004] NSWCCA 434
- R v De Simoni (1981) 147 CLR 383
- R v Dunn (NSWCCA, 15 April 1992, unrep)
- R v Fisher (1989) 40 A Crim R 442
- R v ND [2016] NSWCCA 103
- R v Skinner (1993) 72 A Crim R 151
- RC v R; R v RC [2020] NSWCCA 76
- The Queen v Pham (2015) 256 CLR 550
- Trevor Essex v R [2013] NSWCCA 11
- Wong v The Queen (2001) 207 CLR 584
- Zreika v R [2012] NSWCCA 44