AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 25 March 2020

Taylor v R

[2020] NSWCCA 46

Sexual offences
AGGRAVATING FACTORS VULNERABILITY OF VICTIM NO LESSER SENTENCE WARRANTED

Citation: Taylor v R [2020] NSWCCA 46
Court: NSW Court of Criminal Appeal
Date: 25 March 2020
Judges: Johnson J, Price J, Davies J (judgment by Davies J, others agreeing)

Background

The applicant, the maternal grandfather of two young complainants (referred to as MP1 and MP2), was convicted after a jury trial of ten sexual offences committed against his granddaughters over a period of approximately three years. The offending included aggravated indecent assault, aggravated sexual intercourse with a child under authority, and inciting acts of indecency. The complainants were aged between nine and fourteen at various points during the offending.

Following the trial, the sentencing was conducted by a different judge, Judge Blackmore SC, because the trial judge had become ill. The sentencing proceeded on agreed facts reflecting what the jury must have found to reach its verdicts. On 20 April 2018, the applicant received an aggregate sentence of 14 years' imprisonment with a non-parole period of nine years and four months.

The applicant sought leave to appeal that sentence on three grounds: that the sentencing judge failed to account for his bowel condition, that the judge gave inadequate reasons, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to take into account the applicant's bowel condition when imposing sentence
  • Whether the sentencing judge failed to give adequate reasons for the sentence
  • Whether the aggregate sentence of 14 years was manifestly excessive, including whether aggravating factors (abuse of trust or authority, and victim vulnerability) had been double-counted

Decision

The Court of Criminal Appeal rejected all three grounds of appeal.

On the medical condition ground, the Court found that the sentencing judge had in fact taken the applicant's bowel condition into account. The judge had expressly noted that the condition was likely to create difficulties in custody, and the applicant did not suffer any specific disadvantage in prison as a result of his condition at the time of sentencing.

On the adequacy of reasons ground, the Court was satisfied that the sentencing judge had provided sufficient reasons. The judge had addressed the relevant facts, the applicable aggravating factors, the applicant's personal circumstances, and the purposes of sentencing.

On manifest excess, the Court examined the argument that the sentencing judge had double-counted the aggravating factors of abuse of trust or authority and vulnerability of the victims. Some offences specifically required that the child be "under authority" as an element of the charge, which meant that factor could not additionally be treated as an aggravating circumstance for those specific counts. However, the Court found that any error in this respect did not lead to a sentence that was outside the appropriate range when the offending as a whole was considered. The Court reviewed comparable sentences and concluded that an aggregate sentence of 14 years was well within the range warranted by the nature and extent of the offending: sustained abuse of two young children who were in the applicant's care and under his authority, committed over three years.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where a statutory offence already incorporates the element of a child being "under authority," the sentencing court cannot also treat that same circumstance as a separate aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for that count, as doing so risks double-counting.
  • No error was established merely because a potential double-counting risk existed, where the overall aggregate sentence remained within the appropriate range given the totality of the offending.
  • A sentencing judge satisfies the obligation to give adequate reasons where the judgment addresses the relevant facts, aggravating factors, the offender's personal circumstances, and the purposes of sentencing, even when sentence is imposed by a different judge from the one who conducted the trial.
  • In dismissing the appeal, the Court confirmed that medical conditions affecting an offender's experience of custody are a relevant consideration, but that general reference to likely difficulties in custody will generally satisfy the sentencing obligation where no specific disadvantage has yet materialised.
  • Comparable authorities involving multiple child victims, familial relationships, and sustained offending over years supported the conclusion that a 14-year aggregate sentence with a non-parole period of over nine years was within the appropriate sentencing range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A

Cases:
- Chamseddine v R [2017] NSWCCA 176
- DH v R [2019] NSWCCA 128
- EG v R [2015] NSWCCA 21
- Hudson v R [2016] NSWCCA 278
- MRW v R [2011] NSWCCA 260
- Porter v R [2019] NSWCCA 117
- R v Hamieh [2010] NSWCCA 189
- R v Mills [2005] NSWCCA 175; (2005) 154 A Crim R 40
- R v Miranda [2002] NSWCCA 89; (2002) 128 A Crim R 362
- R v Obeid (No 12) [2016] NSWSC 1815
- R v Scavera [2016] NSWCCA 145
- R v Van Ryn [2016] NSWCCA 1
- RL v R [2018] NSWCCA 274
- RO v R [2019] NSWCCA 183
- Sivell v R [2019] NSWCCA 77
- Taylor v R [2018] NSWCCA 255