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Court of Criminal Appeal 6 August 2021

GP (a pseudonym) v R

[2021] NSWCCA 180

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE APPEAL ALLOWED

Citation: GP (a pseudonym) v R [2021] NSWCCA 180
Court: Court of Criminal Appeal, NSW
Date: 6 August 2021
Judge(s): Brereton JA, N Adams J, Cavanagh J

Background

The applicant had pleaded guilty in the District Court to maintaining an unlawful sexual relationship with a child under s 66EA(1) of the Crimes Act 1900 (NSW), as well as a separate charge of aggravated indecent assault. The offending involved four specified acts of penile-vaginal intercourse with the victim, who was 12 years old at the time the relationship began. The victim had known the applicant for ten years, and he was a father figure to her; the first act occurred the night before he married her mother.

On the question of ejaculation, the agreed facts on which sentencing proceeded were uneven in their specificity. The agreed facts expressly stated ejaculation occurred on one occasion. For two other acts, the victim could not recall whether ejaculation occurred. For the fourth act, the agreed facts were entirely silent on the issue.

The applicant sought leave to appeal his sentence, contending the sentencing judge had misapprehended the agreed facts by treating ejaculation as a recurring feature of the offending rather than something established on only one occasion.

  • Whether the sentencing judge made a factual error by treating ejaculation as having occurred on "some occasions," when the agreed facts only established it beyond reasonable doubt on one occasion.
  • Whether that error had the capacity to affect the sentencing outcome, so as to require the Court of Criminal Appeal to re-exercise the sentencing discretion.
  • What the appropriate sentence was upon resentencing.

Decision

The Court of Criminal Appeal unanimously found that the sentencing judge had misapprehended the agreed facts. The remarks on sentence referred to ejaculation occurring on "some occasions" and described "some of the acts" as involving penile-vaginal intercourse with ejaculation. Under the principle established in The Queen v Olbrich (1999) 199 CLR 270, a sentencing court can only take a fact into account adversely to an offender if it is established beyond reasonable doubt. On the agreed facts as drafted, ejaculation could only be established to that standard on one occasion.

Ejaculation is a recognised aggravating circumstance in this context. All three judges concluded there was a real possibility the applicant had been sentenced on the basis that ejaculation was a common or consistent feature of the offending, which would have given it greater aggravating weight than if it had occurred only once. N Adams J described the capacity question as "finely balanced" but adopted a cautious approach and accepted the error could have influenced the outcome. That conclusion triggered the obligation to resentence pursuant to Kentwell v The Queen (2014) 252 CLR 601.

In resentencing, the Court took into account the applicant's deeply deprived background, including that he was born drug-dependent, had incarcerated parents, experienced foster care, was separated from siblings, and was himself sexually abused as a child. The Court also weighed the serious and calculated nature of the offending: the applicant commenced the abuse the night before marrying the victim's mother, told the victim not to disclose the abuse as it would ruin her mother's life, and later threatened self-harm if she told anyone. The victim impact statements demonstrated profound ongoing harm. Applying a 20% discount for the utilitarian value of an early guilty plea, the Court imposed a sentence of 12 years with a non-parole period of 8 years and 7 months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • The applicant is sentenced to 12 years imprisonment commencing 17 July 2018 and expiring 16 July 2030.
  • Non-parole period of 8 years and 7 months, commencing 17 July 2018 and ending 16 February 2027.
  • Earliest eligible release date: 17 February 2027.

Key Takeaways

  • A sentencing court can only take a fact into account adversely to an offender if it is established beyond reasonable doubt, consistent with The Queen v Olbrich. Where agreed facts are equivocal or silent on a particular matter, that standard may not be met.
  • Ejaculation is an established aggravating factor in child sexual offence sentencing, because it adds to the degradation of the victim and, where intercourse is involved, raises the potential risk of pregnancy: confirmed by reference to KAB v R [2015] NSWCCA 55.
  • Where a sentencing judge misstates a fact that relates to an aggravating circumstance, the relevant question is whether the error had the capacity to affect the sentencing outcome. The Court of Criminal Appeal applied a cautious approach on that question here, even though the outcome was described as finely balanced.
  • Under Kentwell v The Queen, once a sentencing error with the capacity to affect the outcome is identified, the Court of Criminal Appeal must re-exercise the sentencing discretion entirely rather than merely adjusting a discrete component.
  • In sentencing for an offence under s 66EA(1), the number of unlawful sexual acts beyond the minimum two required to establish the offence, and the nature of those acts, are relevant to the assessment of objective seriousness: R v Fitzgerald (2004) 59 NSWLR 493.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66EA(1), 66EA(2), 61M(2)
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)

Cases
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- KAB v R [2015] NSWCCA 55
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Newman (a pseudonym) v R [2019] NSWCCA 157
- A v R [2020] NSWCCA 145
- Burr v R [2020] NSWCCA 282
- Facenfield v R [2021] NSWCCA 128
- Mills v R [2017] NSWCCA 87
- R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5
- R v MS [2005] NSWCCA 322
- R v Oloitoa [2007] NSWCCA 177