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Court of Criminal Appeal 10 August 2020

R v Hill

[2020] NSWCCA 197

Other
CRIMINAL LAW CROWN APPEAL CONSIDERATION OF RESPONDENT’S OFFENCES APPEAL DISMISSED

Citation: R v Hill [2020] NSWCCA 197
Court: NSW Court of Criminal Appeal
Date: 10 August 2020
Judges: Price J (principal judgment); Garling J and Wright J (agreeing)

Background

The respondent pleaded guilty to nine offences arising from a single day of offending on 12 June 2018 in Newcastle: one count of aggravated kidnapping, seven counts of aggravated sexual intercourse without consent, and one count of possessing child abuse material. The complainant, a pseudonymous 11-year-old referred to as "Michele," was abducted by the respondent while walking to school and held captive for approximately five hours, during which she was subjected to repeated acts of serious sexual violence and death threats. When arrested, police also found 271 child abuse images on the respondent's phone.

In December 2019, the sentencing judge in the District Court imposed an aggregate sentence of 23 years and 6 months, with a non-parole period of 17 years. The Director of Public Prosecutions brought a Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW), contending that the aggregate sentence was manifestly inadequate.

  • Whether the aggregate sentence of 23 years and 6 months was manifestly inadequate in all the circumstances.
  • Whether the indicative sentences for individual offences failed to properly reflect findings of objective seriousness, including whether the sentencing judge's reference to "worst case category" offending was inconsistent with his individual assessments.
  • Whether the sentencing judge gave insufficient weight to the respondent's subjective circumstances, in particular his background of disadvantage.
  • Whether the sentencing judge failed to adequately accumulate the individual sentences when constructing the aggregate term.

Decision

The Court of Criminal Appeal dismissed the appeal unanimously. Price J, delivering the principal judgment, acknowledged that the aggregate sentence might be regarded as lenient, but held that leniency alone does not establish manifest inadequacy. The Crown was required to demonstrate that the sentence fell outside the range properly open to the sentencing judge, and the Court found it had not done so.

On the question of objective seriousness, Price J examined each of the indicative sentences and was not persuaded that the undiscounted starting points failed to reflect the gravity of the offending. The Court considered the sentencing judge's references to the "worst case category" and, while noting some tension in the reasoning, did not find that those references produced any demonstrable error in the ultimate sentences imposed.

The Court also considered the respondent's subjective case, including his background of disadvantage, and found that the sentencing judge had properly applied the principles from Bugmy v The Queen in taking that background into account. On the accumulation issue, Price J was not persuaded that the judge had failed to adequately accumulate the individual sentences when arriving at the aggregate figure.

Garling J and Wright J both agreed that the Crown had not demonstrated the sentence was manifestly inadequate, and that the sentence imposed fell within the range properly available to the sentencing judge. Wright J specifically noted that, while a sterner sentence may properly have been imposed, that was insufficient to establish manifest inadequacy.

Orders Made

• The Crown's appeal is dismissed

Key Takeaways

  • A Crown appeal on the ground of manifest inadequacy requires demonstration that the sentence fell outside the range properly open to the sentencing judge; a sentence that is merely lenient does not meet that threshold.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that some tension or imprecision in a sentencing judge's language does not itself establish a sentencing error, provided the ultimate result falls within a proper range.
  • Under the principle confirmed in Bugmy v The Queen, a respondent's background of deprivation and disadvantage remains a relevant mitigating consideration at sentencing, and a sentencing judge who properly applies that principle does not thereby fall into error.
  • Where an aggregate sentence is imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the question of whether individual sentences have been adequately accumulated is assessed by reference to the overall figure, not by mechanical addition of individual indicative terms.
  • Wright J's observation that "a sterner aggregate sentence may properly have been imposed" illustrates the width of the available sentencing range in serious matters, while confirming that this width operates to protect both prosecution and defence appeals from succeeding on marginal grounds.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A
- Crimes Act 1900 (NSW), ss 61J(1), 86(2)(b), 91H(2), 578A

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- R v Pham (2015) 256 CLR 550
- R v Kilic (2016) 259 CLR 256
- The Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428
- Pearce v The Queen (1998) 194 CLR 610
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Obeid v R (2017) 96 NSWLR 155
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- JM v R [2014] NSWCCA 297
- Kerr v R [2016] NSWCCA 218
- TB v R [2020] NSWCCA 108
- Vaughan v R [2020] NSWCCA 3
- R v Hemsley [2004] NSWCCA 228
- R v AJP [2004] NSWCCA 434
- R v King [2009] NSWCCA 117
- R v Nakash [2017] NSWCCA 196