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13
Court of Criminal Appeal 15 February 2021

JA v R

[2021] NSWCCA 10

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE ONE CHILD SEX OFFENCE CONTRARY TO S 66A APPLICANT SENTENCED WHEN AGED 44 WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: JA v R [2021] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 15 February 2021
Judges: Basten JA, Johnson J, Davies J (unanimous)

Background

The applicant was convicted and sentenced in the District Court on three separate offences spanning approximately 25 years. The first and most serious offence was sexual intercourse with a child under ten years, contrary to s 66A of the Crimes Act 1900 (NSW). That offence was committed between April 1989 and January 1990, when the applicant was 14 years old and the complainant, his younger sister, was nine. The applicant was not sentenced until 2019, when he was 44 years old.

The two remaining offences on a separate indictment related to conduct in 2014, when the applicant was 39. The first was using a carriage service to menace, harass or offend, after he sent explicit photographs of himself to his sister via Facebook Messenger. The second was possession of child abuse material: 51 images and one video were found on his laptop, ranging across multiple levels of severity on the Child Exploitation Tracking System scale.

Judge Wilson SC sentenced the applicant to an overall term of six years, with a non-parole period of four years. The sentences were made largely cumulative given the substantial temporal gap between the offences. The applicant sought leave to appeal, filed out of time, on the grounds that the sentencing judge had misapplied the maximum penalty for the s 66A offence, that the sentence for that offence was manifestly excessive, and that the total sentence failed to apply the totality principle correctly.

  • Whether the sentencing judge erred by applying the current maximum penalty for the s 66A offence rather than the maximum penalty at the time the offence was committed (20 years)
  • Whether s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) was engaged where the maximum penalty had increased since the date of the offence
  • Whether the sentencing judge failed to give proper weight to the principles governing the sentencing of juvenile offenders, given the applicant was 14 at the time of the s 66A offence
  • Whether the sentence for the s 66A offence was manifestly excessive
  • Whether the degree of accumulation between the three sentences was excessive such that the total sentence was manifestly excessive

Decision

Ground 1: Maximum penalty. The Court found that the sentencing judge was aware of his obligation to apply the maximum penalty at the time of the offence (20 years), but that comments made during the sentencing proceedings created ambiguity about whether he had in fact done so. The Court accepted this was a source of appellable error, though it was closely linked with the second ground.

Ground 2: Manifest excess and juvenile sentencing principles. The Court found that the sentencing judge did not give sufficient weight to the principles applicable to juvenile offenders. Established authority requires that, when an adult is sentenced for an offence committed as a juvenile, matters such as rehabilitation, immaturity, and reduced moral culpability carry particular significance. The applicant was 14 at the time of the s 66A offence, and the 30-year gap between the offending and sentencing was a relevant factor. The Court found the sentence of four years with a non-parole period of two years and eight months for the s 66A offence was manifestly excessive in light of these principles, and that the sentencing judge had not adequately applied them.

Ground 3: Totality. Given the appeal was allowed on grounds 1 and 2, the Court resentenced on the s 66A offence. Davies J reduced the sentence for that offence to a non-parole period of 15 months, with a balance of term of five months, making the total effective sentence shorter. The Court accepted that the three sets of offending were entirely discrete, occurring some 25 years apart, and that partial accumulation remained appropriate. The structural arrangement of the other two sentences was largely maintained.

Orders Made

  • Time for filing the Notice of Application for Leave to Appeal extended to 17 August 2020
  • Leave to appeal granted
  • Appeal allowed
  • Sentence for the s 66A offence quashed
  • In lieu: non-parole period of one year and three months commencing 25 November 2019, expiring 24 February 2021, with a balance of term of five months expiring 24 July 2021
  • First eligible for parole on 24 February 2021

Key Takeaways

  • When sentencing an adult for an offence committed as a juvenile, the principles applicable to juvenile offenders retain real significance, including reduced moral culpability, the importance of rehabilitation, and the effect of a lengthy delay between offending and sentencing.
  • A sentencing judge's comments during proceedings can give rise to appellable error where they create genuine ambiguity about whether the correct maximum penalty was applied, even if the judge was nominally aware of that penalty.
  • Under s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW), where the maximum penalty for an offence has increased since the offence was committed, the sentencing court must apply the lower maximum in force at the time of the offence.
  • The Court of Criminal Appeal confirmed that partial accumulation of sentences for entirely discrete offending separated by approximately 25 years can be appropriate to reflect the nature and independence of each course of conduct, provided the totality principle is properly applied.
  • Sufficient error was established to warrant resentencing where the combination of the wrong approach to the maximum penalty and inadequate application of juvenile sentencing principles resulted in a manifestly excessive term for the s 66A offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 66A, 91H
- Criminal Code 1995 (Cth) s 474.17(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 25AA
- Children (Criminal Proceedings) Act 1987 (NSW) s 6

Cases:
- R v JA [2019] NSWDC 314 (sentencing decision under appeal)
- R v AJP (2004) 150 A Crim R 575
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- BM v R [2019] NSWCCA 223
- Lonsdale v R [2020] NSWCCA 267
- Mohindra v R [2020] NSWCCA 340
- R v Elliott and Blessington (2006) 68 NSWLR 1; [2006] NSWCCA 305
- R v RM [2015] NSWCCA 4; (2015) 248 A Crim R 408
- Paul Campbell v R [2018] NSWCCA 87
- Dang v R [2014] NSWCCA 47
- R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451
- R v KBM [2004] NSWCCA 123
- R v KLH [2004] NSWCCA 312; (2004) 148 A Crim R 515
- R v JDB [2005] NSWCCA 102