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Court of Criminal Appeal 16 November 2020

Cunningham v R

[2020] NSWCCA 287

Sexual offences
CRIMINAL LAW SENTENCE APPEAL LEAVE TO APPEAL GRANTED APPEAL DISMISSED.

Citation: Cunningham v R [2020] NSWCCA 287
Court: NSW Court of Criminal Appeal
Date: 16 November 2020
Judges: Hoeben CJ at CL; Harrison J; Bellew J

Background

The appellant pleaded guilty to two historical child sexual offences committed between 1995 and 1997 against a female victim aged between 9 and 12 years at the time. The offences involved aggravated indecent assault (Count 1) and aggravated sexual intercourse by digital penetration (Count 2), both contrary to the Crimes Act 1900 (NSW). The appellant had befriended the victim's father, provided horse riding lessons to the victim, and used babysitting arrangements to gain access to her.

The offences formed part of a broader pattern of child sexual offending. The appellant had previously been sentenced in 1998 by Judge Karpin for indecent assault offences against three other young females committed around the same period, and again in 2005 by Judge Delaney for further child sexual assault offences committed between 2002 and 2003.

At the Sydney District Court on 23 January 2020, Acting Judge Latham SC sentenced the appellant to an 18-month fixed term on Count 1 and, with partial accumulation of six months, to a non-parole period of 3 years (from October 2018) and a balance of term of 2 years and 3 months on Count 2, following a 25 per cent discount for early guilty pleas. The effective sentence was a head sentence of 5 years and 9 months with a non-parole period of 3 years and 6 months.

  • Whether the sentencing judge properly applied the totality principle by focusing primarily on the 1998 sentence imposed by Judge Karpin, without giving adequate weight to the later 2005 sentence imposed by Judge Delaney.
  • Whether the overall sentence imposed was manifestly excessive.

Decision

Ground 1: Totality

The totality principle requires a sentencing court to consider what additional sentence would have been appropriate had all the relevant offences been dealt with together. Because the current offences were committed contemporaneously with those sentenced by Judge Karpin in 1998, the sentencing judge correctly treated that earlier sentence as the primary reference point for the totality analysis. The appellant argued that the later sentence imposed by Judge Delaney in 2005 for separate, later offending also needed to be factored into the totality assessment, but the Court of Criminal Appeal rejected this. The offences before Judge Delaney arose from conduct occurring between 2002 and 2003, entirely separate in time and circumstances from the offences under consideration. There was no error in the sentencing judge's approach.

Ground 2: Manifest Excess

The Court found the sentences were consistent with the sentencing judge's findings on objective seriousness. Count 1 was placed towards the lower end of the range, and Count 2 near the middle, with the Court noting the significant breach of trust, and the degree of planning and manipulation involved. The appellant also received a generous adjustment to the non-parole period arising from a finding of special circumstances. While both Harrison J and Bellew J noted that the 18-month fixed term on Count 1 might be regarded as stern in isolation, neither was persuaded that it, or the overall sentence, was manifestly excessive in the sense of being unreasonable or plainly unjust.

Orders Made

  • Leave to appeal against sentence granted.
  • The appeal against sentence dismissed.

Key Takeaways

  • The totality principle requires identification of the most relevant earlier sentence as a benchmark, which will generally be the sentence for offending committed at the same time and dealt with together, rather than all prior sentences on the offender's record.
  • Where an offender has been sentenced on multiple separate occasions for distinct episodes of offending, a sentencing court is not obliged to treat all earlier sentences as equally relevant reference points in a totality analysis.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a sentence which might be regarded as stern in isolation does not automatically satisfy the high threshold of being manifestly excessive, that is, unreasonable or plainly unjust.
  • Partial accumulation of sentences for offences against the same victim committed on separate occasions was held to be appropriate in these circumstances.
  • Section 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to the sentencing, and the maximum penalties of 7 years (Count 1) and 20 years (Count 2) remained important guideposts throughout the assessment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA

Cases:
- Baines v R [2016] NSWCCA 132
- Hughes v R [2018] NSWCCA 2
- Kerr v R [2016] NSWCCA 218
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Mulato v Regina [2006] NSWCCA 282
- Porter v R [2019] NSWCCA 117
- R v Cattell [2019] NSWCCA 297
- RLS v R [2012] NSWCCA 236