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Court of Criminal Appeal 23 October 2020

R v AD

[2020] NSWCCA 275

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE VICTIMS ALL CHILDREN OFFENCES INVOLVING THREATS AND VIOLENCE NO APPLICATION OF RESIDUAL DISCRETION NEED TO RE

Citation: R v AD [2020] NSWCCA 275
Court: NSW Court of Criminal Appeal
Date: 23 October 2020
Judge(s): Hoeben CJ at CL; Rothman J; N Adams J

Background

The respondent was convicted by a jury of 22 sexual offences committed between 1978 and 1987 against eight child victims, all of whom were Aboriginal and either his nieces, nephews, or cousins. The victims were aged between six and fourteen at the time of the offending. The offences included buggery, carnal knowledge of girls under ten, and various forms of sexual assault, many involving force, threats, and confinement. Several offences carried maximum penalties of life imprisonment.

On 15 May 2020, Judge Flannery SC in the Sydney District Court imposed an aggregate sentence of 14 years with a non-parole period of 8 years. The sentencing judge found that each offence was, at the very least, a serious example of its type. She also found significant subjective mitigating factors, including that the respondent had himself been sexually abused as a child of approximately five years, had suffered profound childhood deprivation, was in his early 60s with serious health problems, and had not come to police attention for sexual offending in the decades between the offending and his detection.

The Director of Public Prosecutions appealed on the sole ground that the aggregate sentence was manifestly inadequate. The Court of Criminal Appeal allowed the appeal and re-sentenced the respondent.

  • Whether the aggregate sentence of 14 years was manifestly inadequate having regard to the objective seriousness of 22 child sexual offences against eight victims.
  • Whether, even if manifest inadequacy were established, the residual discretion should be exercised to decline to intervene given the respondent's strong subjective case.
  • How sentencing courts should approach cases where both the offender and victims come from a disadvantaged Aboriginal background, including the tension between reduced moral culpability and the need to vindicate victims and deter offending.

Decision

The Court held unanimously that the aggregate sentence was manifestly inadequate. Although the sentencing judge correctly identified each offence as at least a serious example of its type, and correctly recognised the significant subjective factors in the respondent's favour, the resulting sentence failed to give adequate weight to the objective gravity of the offending. The breadth of offending across eight victims over nearly a decade, the young ages of the children, the use of force and threats, and the respondent's position of trust as an elder within the family all demanded a heavier sentence.

On the question of the respondent's deprived background and his own childhood victimisation, the Court accepted those matters reduced his moral culpability. However, Rothman J observed that, as a consequence of his own abuse, the respondent was aware of the profound lifelong trauma such offending causes. The Court emphasised that giving effect to general deterrence was necessary to break intergenerational cycles of such conduct, and that treating Aboriginal victims as less deserving of protection and vindication than others would be inconsistent with principle.

The Court declined to exercise the residual discretion to refrain from intervening despite the manifest inadequacy. Relying on CMB v Attorney-General for New South Wales and Munda v Western Australia, the Court reasoned that the criminal law must vindicate the dignity of victims, express community disapproval of the offending, and protect the vulnerable. The Court noted the absence of comparable cases and the importance of confirming that, where Aboriginal children who are victims of sexual assault overcome significant barriers to reporting, the sentence imposed will reflect the seriousness of what was done to them.

Orders Made

  • The sentence imposed by Judge Flannery SC on 15 May 2020 was quashed.
  • In lieu thereof, the respondent was sentenced to imprisonment with a non-parole period of 10 years commencing 22 November 2017 and expiring 21 November 2027, with a balance of term of 5 years expiring 21 November 2032.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a strong subjective case, including a deprived upbringing and the offender's own childhood victimisation, does not displace the requirement that a sentence adequately reflect the objective seriousness of widespread child sexual offending.
  • Where both the offender and the victims are Aboriginal and come from disadvantaged backgrounds, the principles in Munda v Western Australia apply: reduced moral culpability remains relevant, but the court's obligation to vindicate victims' dignity and afford protection to the vulnerable carries significant weight.
  • A sentence may be manifestly inadequate even where the sentencing judge has made no identifiable error in identifying relevant factors, if the product of the exercise fails to reflect the full criminality involved.
  • The residual discretion to decline resentencing was refused, with the Court noting that the absence of comparable cases underscored the need for guidance, particularly concerning the sentencing of serious sexual offending against Aboriginal children within family settings.
  • Intergenerational sexual violence within communities was identified as a specific consideration supporting general deterrence, which the Court held must be given real weight even against a compelling personal history of deprivation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D(1), 67, 76, 79, 81
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA, 44, 53A
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 (NSW), s 66EB

Cases:
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Regina v Dodd (1991) 57 A Crim R 349
- RC v R; R v RC [2020] NSWCCA 76
- R v Hill [2020] NSWCCA 197
- Franklin (a pseudonym) v R [2019] NSWCCA 325
- Berryman v R [2017] NSWCCA 297