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Court of Criminal Appeal 12 May 2020

WM v R

[2020] NSWCCA 96

Sexual offences
CRIMINAL LAW SENTENCE APPEAL SEXUAL INTERCOURSE WITH CHILD UNDER 10 NECESSITY FOR PARITY PRINCIPLE OFFENDER

Citation: WM v R [2020] NSWCCA 96
Court: NSW Court of Criminal Appeal
Date: 12 May 2020
Judges: Johnson J, Adamson J, Bellew J (reasons by Bellew J)

Background

The applicant pleaded guilty in the District Court to two counts of sexual intercourse with a child under 10 years of age, contrary to s 66A(2) of the Crimes Act 1900 (NSW). The offences were aggravated because the victim was "under the authority" of the applicant at the time. The victim was the applicant's biological daughter, who was approximately nine months old when the offences occurred.

The offending took place while the child's mother was absent at a vocational course, leaving the infant in the care of the applicant and a co-offender. Photographic evidence recovered from electronic devices formed the basis of the charges. The sentencing judge also took into account a further offence on a Form 1: using a child under 14 years to produce child abuse material.

In the District Court, the applicant received an aggregate sentence of 13 years and 8 months' imprisonment, with a non-parole period of 10 years and 3 months. He sought leave to appeal to the Court of Criminal Appeal on the grounds that the sentencing judge erred in weighing the breach of trust and that the sentence was unjustifiably disparate from that imposed on the co-offender.

  • Whether the sentencing judge erred in the way he took into account the applicant's breach of trust, given the statutory aggravating circumstance that the victim was "under the authority" of the applicant
  • Whether the parity principle applied so as to give the applicant a justifiable sense of grievance in light of the sentence imposed on the co-offender
  • Whether the aggregate sentence was manifestly excessive

Decision

Breach of trust ground: The Court considered whether the sentencing judge had impermissibly "double-counted" by treating the applicant's parental relationship as a separate aggravating factor on top of the statutory aggravation of the victim being "under the authority" of the offender. The Court found no error. The sentencing judge had distinguished between the statutory circumstance of aggravation, which related to the child being in the applicant's care at the time, and the broader breach of the trust inherent in the parent-child relationship. These were properly treated as distinct considerations.

Parity principle: The parity principle requires that, where co-offenders receive different sentences, there should be no unjustified disparity that would give the more heavily sentenced offender a justifiable sense of grievance. The Court examined the similarities and differences between the applicant and the co-offender, including the nature of each offender's criminality, their personal circumstances, and the offences to which each pleaded guilty. The co-offender had admitted to more extensive conduct, including additional and more invasive offending. The sentencing judge had carefully weighed these distinctions, and the Court found no unjustified disparity in the sentences.

Manifest excess: Having rejected the other grounds, the Court found no basis for concluding the sentence was unreasonable or plainly unjust. The sentencing judge had properly considered all relevant factors, including the gravity of the offending, the vulnerability of the victim, and the need for deterrence and community protection. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a parental relationship can be treated as a distinct aggravating consideration in sentencing, even where the statutory aggravating circumstance of the victim being "under the authority" of the offender already applies. The two concepts address different aspects of the offending.
  • Under the parity principle, an appellate court will look beyond the bare comparison of sentences and examine the full range of similarities and differences between co-offenders before concluding that unjustified disparity exists.
  • No unjustified disparity was established where the co-offender had pleaded guilty to more extensive offending, and the sentencing judge had expressly turned his mind to the relevant points of comparison.
  • In dismissing the appeal, the Court reaffirmed that a sentence will only be disturbed on the ground of manifest excess where it is shown to be unreasonable or plainly unjust, not merely because a different outcome was arguable.
  • The standard non-parole period for offences under s 66A(2) of the Crimes Act 1900 (NSW) is 15 years, with a maximum of life imprisonment. The sentences imposed here fell below that non-parole period, reflecting the sentencing judge's careful assessment of the individual circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(2), 91G(1)(a)

Cases:
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De la Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Director of Public Prosecutions v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41
- Goodbun v R [2020] NSWCCA 77
- 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
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- MLP v R [2014] NSWCCA 183
- MRW v R [2011] NSWCCA 260
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Baker [2000] NSWCCA 85
- RLS v R [2012] NSWCCA 236
- Ryan v R [2009] NSWCCA 183
- Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215