Citation: BG v R [2020] NSWCCA 295
Court: NSW Court of Criminal Appeal
Date: 11 November 2020
Judges: Simpson AJA; Bellew J; Wilson J
Background
The applicant was a step-father who pleaded guilty to multiple child sexual assault offences committed against his step-son. The offences included repeated sexual acts perpetrated over time, culminating in a penile-anal assault in circumstances where the victim had clearly withheld consent and was subsequently too frightened to disclose the abuse until the applicant left the family home.
The applicant was sentenced in the District Court following guilty pleas entered on the day fixed for trial. He had no significant criminal history, and character references from family and associates described the offending as out of character.
The applicant sought leave to appeal his sentence on a single ground: that the sentencing judge erred in the treatment of his evidence of prior good character.
Legal Issues
- Whether the sentencing judge erred by failing to expressly address the weight to be given to the applicant's prior good character after finding that such character existed.
- Whether that error, if established, warranted re-sentencing.
- On re-sentence: what weight should be given to prior good character in light of the nature of the offending.
Decision
The three judges divided on the outcome. Bellew J (with whom Simpson AJA agreed) found error and proceeded to re-sentence. Wilson J would have granted leave but dismissed the appeal, finding no appellate error in the sentencing remarks read fairly and as a whole.
Bellew J (majority, with Simpson AJA): The sentencing judge's remarks disclosed a finding, albeit implicit, that the applicant was a person of otherwise good character. However, his Honour said nothing about the weight given to that finding when determining the appropriate sentence. The framework established in Ryan v The Queen (2001) 206 CLR 267 requires two distinct steps: first, a determination of whether the offender is of good character; and second, a determination of what weight that finding carries. Merely reciting that mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) have been "taken into account" does not satisfy that second requirement. The ground of appeal was made out.
On re-sentence, Bellew J assessed the offending as objectively serious. Aggravating features included repeated breach of trust, planning (the applicant had condoms and pornographic material available), threats used to ensure the victim's silence, and the victim's complete vulnerability as a child in a strange town entirely dependent on the applicant. A 10% discount applied for the utilitarian value of the guilty pleas, though Bellew J expressed reservations about genuine remorse given the applicant's pre-arrest attempts to justify and minimise the conduct. Prior good character was afforded weight, but that weight was limited given the modest character evidence and the gravity of the offending. Special circumstances were found, warranting adjustment of the non-parole period to allow for psychological treatment in the community. The sentence ultimately imposed was modestly reduced from that of the sentencing judge.
Wilson J (dissenting): Wilson J accepted that the sentencing remarks were delivered ex tempore in a busy regional District Court list, a circumstance this Court has consistently recognised places significant burdens on sentencing judges. Reading the remarks as a whole, Wilson J concluded that the sentencing judge had given the applicant the benefit of his former good character, appropriately balancing that factor against the grave nature of the crimes and the applicant's ongoing denial. No appellate error was disclosed, and the appeal should be dismissed.
Orders Made
• Leave to appeal is granted
• The appeal is dismissed
Key Takeaways
- Under the framework in Ryan v The Queen, a sentencing judge who finds an offender to be of prior good character must then separately address the weight that finding carries in fixing the sentence; a bare reference to having "taken into account" mitigating factors under s 21A is insufficient to discharge this obligation.
- A failure to address the second Ryan step constitutes an error of principle capable of vitiating a sentence, even where the underlying finding of good character is only implicit rather than expressly stated.
- The Court of Criminal Appeal confirmed that ex tempore sentencing remarks delivered in busy regional District Court lists are assessed with appropriate allowance for the conditions under which they are produced, though that allowance does not excuse a failure to address a required step in the sentencing analysis.
- Where prior good character is established in a child sexual assault case, the weight attributed to it will be constrained by the gravity and nature of the offending, including planning, breach of trust, and the use of threats to secure silence.
- Evidence of planning, such as possession of condoms in circumstances indicating premeditation, and threats made before or after sexual offences to ensure a victim's compliance, are relevant to the objective gravity of the offending for sentencing purposes.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 21A
- Criminal Appeal Act 1912 (NSW)
Cases:
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Weininger v R (2003) 212 CLR 629; [2003] HCA 14
- Hudson v R [2016] NSWCCA 278
- Taylor v R [2020] NSWCCA 46
- Taylor v R [2018] NSWCCA 255
- R v AJP [2004] NSWCCA 434
- R v MacLeod [2013] NSWCCA 108
- Hoskins v R [2016] NSWCCA 157
- Tuncbilek v R [2020] NSWCCA 30
- TP v R [2018] NSWCCA 140
- R v Gent [2005] NSWCCA 370
- R v Qutami [2001] NSWCCA 353
- R v Speechley [2012] NSWCCA 130
- Rotner v R [2011] NSWCCA 207
- Simkhada v R [2010] NSWCCA 284
- R v Thomas [2007] NSWCCA 269
- R v Van Ryn [2016] NSWCCA 1
- R v Kennedy [2000] NSWCCA 527
- R v Wheeler [2000] NSWCCA 34