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Court of Criminal Appeal 2 August 2021

Parker v R

[2021] NSWCCA 175

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION APPLICANT CHARGED WITH 11 OFFENCES APPEALS APPEAL AGAINST SENTENCE

Citation: Parker v R [2021] NSWCCA 175
Court: NSW Court of Criminal Appeal
Date: 2 August 2021
Judge(s): Davies J (at [1]), Hamill J (at [142]), Wilson J (at [147])

Background

The applicant was a registered foster carer who, along with his wife, took in an 11-year-old boy ("C") and his sister in July 2015. C remained in their care until November 2016. In January 2018, following an angry exchange over Instagram, C disclosed to his then foster carer that the applicant had sexually abused him during the placement. C was interviewed by police shortly after.

The applicant was charged with 11 offences spanning the period of C's placement. These included grooming a child under 16, aggravated acts of indecency, inciting a child to commit an act of indecency, and aggravated sexual intercourse with a person under 14. The conduct alleged included exposing C to pornography, engaging in various sexual acts with him, and performing oral sex on him while C was aged 12.

A jury found the applicant guilty on all 11 counts in June 2019. In December 2019, the District Court sentenced him to an aggregate term of 10 years' imprisonment with a non-parole period of six years and six months. He sought leave to appeal both the conviction and the sentence before the Court of Criminal Appeal.

  • Whether the jury's verdicts on all 11 counts were unreasonable or could not be supported having regard to the evidence (Ground 1)
  • Whether the sentencing judge erred by failing to assess the objective criminality of counts 2 to 11 (Ground 2)
  • Whether the aggregate sentence of 10 years was manifestly excessive (Ground 3)

Decision

Ground 1: Unreasonable verdicts

The Court rejected the submission that the verdicts were unreasonable. The Court applied the test from M v The Queen (1994) 181 CLR 487 and Pell v The Queen [2020] HCA 12, which requires the appellate court to ask whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt. The Court found the case against the applicant was strong, noting the detail and consistency of C's evidence about each alleged incident. The Court dismissed the argument that C's credibility was so undermined by inconsistencies as to make the verdicts unreasonable. Ground 1 was dismissed.

Ground 2: Failure to assess objective criminality

The majority upheld this ground. The Court found that the sentencing judge's remarks did not permit a sufficiently clear understanding of her assessment of the objective seriousness of counts 2 to 11. While it is not necessary for a sentencing court to express objective seriousness by formula or percentage, the court must nonetheless clearly identify the facts and circumstances bearing on that assessment. The majority concluded that, in this case, the analysis did not allow that assessment to be discerned with sufficient clarity, and resentencing was warranted. Hamill J dissented on this ground, finding her Honour had adequately addressed the gravity of the offending when her remarks were read as a whole.

Resentencing

The Court resentenced the applicant to nine years' imprisonment with a non-parole period of five years and nine months. In doing so, the Court took into account the serious breach of trust involved (the applicant held a position of authority over a vulnerable child), C's background as a child in out-of-home care who was particularly vulnerable, the likely lasting psychological harm to C, and the applicant's good prospects of rehabilitation and low risk of reoffending. Ground 3 did not require separate determination given the resentencing.

Orders Made

  • Leave to appeal against conviction granted; appeal dismissed
  • Leave to appeal against sentence granted; appeal allowed
  • Applicant resentenced to nine years' imprisonment commencing 15 November 2018, with a non-parole period of five years and nine months

Key Takeaways

  • The Court of Criminal Appeal confirmed that appellate courts must assess whether a jury verdict was one that was reasonably open on the whole of the evidence, not merely whether inconsistencies existed in a complainant's account; detail and internal consistency of a complainant's evidence can support reasonable verdicts even where some peripheral discrepancies are present.
  • A sentencing court is not required to express objective seriousness as a formula, percentage, or classification, but it must clearly identify the facts, matters, and circumstances that bear on the gravity of each offence so that the reasoning can be understood on appeal.
  • Where that reasoning cannot be sufficiently discerned from a sentencing judge's remarks, the Court of Criminal Appeal will intervene and resentence, even where the indicative sentences and aggregate term are individually known.
  • In resentencing, the Court treated the complainant's status as a child in out-of-home care as a significant aggravating factor, reflecting the heightened vulnerability arising from the applicant's position as a foster carer with direct authority over C.
  • Resentencing resulted in a reduction from 10 years (non-parole 6 years 6 months) to 9 years (non-parole 5 years 9 months), notwithstanding the Court's recognition of the gravity of the breach of trust and the likely enduring harm caused to C.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 61N, 61O, 66C, 66EB
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- Pell v The Queen [2020] HCA 12; (2020) 376 ALR 478
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
- FL v R [2020] NSWCCA 114
- RC v R; R v RC [2020] NSWCCA 76
- PK v R [2012] NSWCCA 263
- DH v R [2019] NSWCCA 128
- R v AJP [2004] NSWCCA 434
- See v R [2020] NSWCCA 272
- MRW v R [2011] NSWCCA 260
- R v Van Ryn [2016] NSWCCA 1
- R v Knight; R v Biuvanua [2007] NSWCCA 283
- R v Woods [2009] NSWCCA 55
- Smith v R [2009] NSWCCA 17
- R v Davis [1999] NSWCCA 15
- R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8
- Regina v Cage [2006] NSWCCA 304