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Court of Criminal Appeal 21 July 2021

Young (a pseudonym) v R

[2021] NSWCCA 163

Sexual offences
SENTENCING AGGREGATE SENTENCE PAROLE PERIOD WHEN NONE SPECIFIED ERROR CONCEDED SENTENCING ERROR BY SENTENCING JUDGE EFFECT OF ERROR

Citation: Young (a pseudonym) v R [2021] NSWCCA 163
Court: NSW Court of Criminal Appeal
Date: 21 July 2021
Judges: Basten JA; Brereton JA; Beech-Jones J

Background

The applicant was sentenced in the District Court following conviction for two discrete series of serious child sexual offences committed against two different victims approximately a decade apart. The first series was committed against his stepdaughter between 1997 and 2002, when she was aged 7 to 13. The second series involved a different victim between 2014 and 2017, when that victim was aged 8 to 11.

After the offending in the first series was discovered, the applicant self-harmed in a way that left him a paraplegic. By the time of sentencing, the applicant was 58 years old and incarcerated as a paraplegic, with minimal subjective evidence placed before the sentencing court about his personal background.

The applicant sought leave to appeal his aggregate sentence on two grounds: first, that the sentencing judge had applied a standard non-parole period that did not exist for certain offences at the time they were committed; and second, that errors in the indicative sentences for several sequences of offending infected the aggregate sentence.

  • Whether the sentencing judge erred by applying a standard non-parole period to offences for which no such standard non-parole period was prescribed at the relevant time
  • Whether errors in indicative sentences for particular sequences of offending caused error in the aggregate sentence
  • What the correct approach is, following Kentwell v The Queen, when the Court of Criminal Appeal identifies sentencing error and proceeds to re-exercise the sentencing discretion independently
  • Whether the ongoing authority of R v Simpson on certain points is consistent with Kentwell

Decision

The Court unanimously granted leave to appeal and found error on both grounds. On ground 1, the sentencing judge had applied a standard non-parole period when sentencing for offences in sequences 11 and 12, notwithstanding that no such standard non-parole period was in force at the time those offences were committed. That error was conceded by the Crown. On ground 2, errors in the indicative sentences for at least sequences 26, 27, and 29 infected the aggregate sentence.

Because sentencing error was established, the Court was required to re-exercise the sentencing discretion independently and afresh, consistent with the High Court's direction in Kentwell v The Queen. The majority (Basten JA and Beech-Jones J) proceeded to resentence the applicant. Brereton JA agreed that error was established and that an independent re-exercise of the discretion was required, but reached a different conclusion on the outcome of that re-exercise.

Brereton JA contributed a detailed analysis of what Kentwell requires. His Honour confirmed that once error of the House v The King kind is established, the Court of Criminal Appeal does not first assess whether the sentence fell within an appropriate range or measure how much the error actually influenced the outcome. Instead, the Court exercises the sentencing discretion anew. However, Kentwell also makes clear that if, after that independent re-exercise, the Court concludes that the same or a greater sentence is appropriate, it need not resentence and may dismiss the appeal on the basis that no lesser sentence is warranted in law.

Brereton JA further clarified that passages in R v Simpson (and any subsequent authority in the Court) that could be read as requiring an inquiry into whether the error affected the length of the sentence before proceeding are inconsistent with Kentwell and should not be followed to that extent. On the re-exercise, Brereton JA gave weight to the significant hardship and vulnerability of the applicant as a paraplegic prisoner, but on his Honour's independent assessment would have imposed a sentence no lesser than that under appeal, and would therefore have dismissed the ground on that basis. The majority disagreed and resentenced the applicant.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence imposed by Colefax SC DCJ on 12 June 2020 set aside
  • Applicant resentenced (by majority), with indicative sentences including:
  • Sequence 3: 4 years 6 months imprisonment, non-parole period 3 years 4.5 months
  • Sequence 4: 4 years 10.5 months imprisonment, non-parole period 3 years 8 months
  • Sequence 5: 6 years imprisonment, non-parole period 4 years
  • Sequence 13: 1 year 6 months imprisonment, non-parole period 1 year 1 month
  • Sequence 14: 3 years imprisonment
  • Sequence 11: 5 years 3 months imprisonment

Key Takeaways

  • Applying a standard non-parole period to an offence for which no such standard non-parole period was prescribed at the time of the offence constitutes identifiable sentencing error warranting appellate intervention.

  • Kentwell v The Queen requires the Court of Criminal Appeal, once House v The King error is established, to re-exercise the sentencing discretion independently and afresh, without first asking whether the error actually altered the outcome or whether the original sentence fell within an appropriate range.

  • Where the Court's independent re-exercise of the sentencing discretion produces a conclusion that the same or a greater aggregate sentence is appropriate, no resentencing is required and the appeal may be dismissed on the ground that no lesser sentence is warranted in law.

  • Any pre- or post-Kentwell authority in the NSW Court of Criminal Appeal, including aspects of R v Simpson, that could be read as requiring an assessment of the error's practical impact on sentence length before re-exercising the discretion is inconsistent with Kentwell and should not be followed to that extent.

  • Incarceration as a paraplegic, including the vulnerability and additional hardship that condition entails, is a relevant matter to be weighed in the independent re-exercise of the sentencing discretion on appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32, 53A, 54A, 54B; Div 1A, Pt 3
- Crimes Act 1900 (NSW), ss 61O, 66A, 66C, 66J, 66M, 66EB, 91G, 91H, 578A
- Criminal Appeal Act 1912 (NSW), s 6
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- House v The King (1936) 55 CLR 499
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Sigalla v R [2021] NSWCCA 2
- Turnbull v R [2019] NSWCCA 97
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- RO v R [2019] NSWCCA 183
- R v Young (a pseudonym) [2020] NSWDC 303