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Court of Criminal Appeal 25 March 2020

LS v R

[2020] NSWCCA 27

Sexual offences
APPEAL SENTENCE APPEAL SENTENCE WHERE OFFENCES OBJECTIVELY SERIOUS WHERE GENUINE REMORSE DEMONSTRATED

Citation: LS v R [2020] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 25 March 2020
Judge(s): Hoeben CJ at CL, Harrison J, Button J

Background

The applicant pleaded guilty in November 2016 to a series of aggravated sexual assaults committed against her 15-year-old daughter between February and June 2015. The offending involved four discrete incidents, and was carried out jointly with the applicant's then partner. The offences were committed contrary to s 61J(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years.

In April 2017, the sentencing judge imposed an aggregate sentence of 11 years' imprisonment with a non-parole period of 7 years. In addition to the principal counts on the indictment, four further charges (one aggravated indecent assault and three aggravated sexual assaults) were taken into account on a Form 1. A Form 1 is a document that allows a sentencing court to take into account additional charges that have not been the subject of a conviction, but which the offender admits and asks the court to consider.

The applicant sought leave to appeal on a single ground: that the sentencing judge had dealt with the Form 1 offences in a manner inconsistent with the parties' agreed position and contrary to the procedural requirements of s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the sentencing judge erred by taking Form 1 offences into account across multiple principal counts, rather than the single count agreed between the parties.
  • Whether the judge failed to comply with the procedural requirements of s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when taking those offences into account.
  • Whether any established error warranted a lesser aggregate sentence on re-sentencing.

Decision

The Court of Criminal Appeal accepted that a procedural error had occurred. The sentencing judge had initially indicated he had not obtained the applicant's consent to taking the Form 1 offences into account, and proceeded to attribute those offences across different principal counts in a manner inconsistent with what had been agreed between the Crown and the applicant. The agreed position was that all Form 1 offences were to be taken into account against Count 3 on the indictment alone.

Despite this error, the Court found that re-sentencing did not produce a lesser aggregate sentence. Harrison J conducted a fresh sentencing exercise, taking into account the objective seriousness of the offending (which was assessed as above the mid-range), the applicant's genuine remorse, and her good but guarded prospects of rehabilitation.

On the question of assistance provided by the applicant to authorities in an unrelated investigation, the Court acknowledged a notional discount was available but found it should not be substantial. There was no connection between the assistance and the offences being sentenced, and the level of assistance was assessed as low overall, even though it was described as "critical" in relation to one particular charge in that other matter.

Applying the totality principle (that the overall sentence must reflect the total criminality involved across all offences), Harrison J concluded the appropriate sentence was a non-parole period of 7 years and 6 months with a balance of term of 4 years and 6 months. Because this exceeded the original non-parole period of 7 years, the appeal was dismissed. Button J agreed, noting specifically that the confusion at first instance was at least partly caused by the Crown having said one thing in written submissions and something different in oral submissions.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A procedural error under s 33 of the Crimes (Sentencing Procedure) Act 1999 in the handling of Form 1 offences does not automatically produce a lesser sentence on re-sentencing; the Court still conducts a full sentencing exercise and assesses the outcome afresh.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a notional discount for assistance to authorities may be available even where the assistance does not relate to the offences being sentenced, but the weight given to that discount will depend on the level and value of the assistance actually provided.
  • Where an offender is sentenced on multiple counts of the same offence and Form 1 matters are attached to one of those counts, parties should make clear on the face of the Form 1 the specific count to which the listed offences are attached, including a count or charge number.
  • Button J observed that inconsistency between a party's written and oral submissions on a matter such as Form 1 attribution contributes to appellable error, placing an avoidable burden on sentencing courts.
  • Objective seriousness remains a dominant sentencing consideration even where an offender demonstrates genuine remorse and good prospects of rehabilitation; neither factor displaced the weight placed on the gravity of the offending in this case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 31, 32, 33

Cases:
- Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- DG v R [2017] NSWCCA 139
- DL v R [2018] NSWCCA 302
- Doumit v R [2011] NSWCCA 134
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- PB v R [2016] NSWCCA 258
- R v Amati [2019] NSWCCA 193
- R v Brandt [2004] NSWCCA 3
- R v Dodd (1991) 57 A Crim R 349
- R v Felton (2002) 135 A Crim R 328; [2002] NSWCCA 443
- Rae v R [2019] NSWCCA 284
- Woodward v R [2017] NSWCCA 44