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7
Court of Criminal Appeal 3 September 2021

Blackett v R

[2021] NSWCCA 210

Sexual offences
SENTENCING APPEAL AGAINST SENTENCE SEXUAL INTERCOURSE WITH A CHILD AGED 14 16 YEARS AGGRAVATED INDECENT ASSAULT POSSESS CHILD ABUSE MATERIAL

Citation: Blackett v R [2021] NSWCCA 210
Court: Court of Criminal Appeal, New South Wales
Date: 3 September 2021
Judge(s): Basten JA; Adamson J; Campbell J

Background

The applicant pleaded guilty in the District Court to five sexual offences against a single victim and one offence of possessing child abuse material. The offending began shortly after the victim turned 14 years old and extended over approximately a year from mid-2017 to mid-2018. The offences included aggravated indecent assault, multiple acts of sexual intercourse with a child aged 14 to 16, and conduct charged as grooming. An apprehended violence order (AVO) obtained in September 2017 did not stop the offending; the applicant breached its terms by maintaining regular daily contact with the victim across social media.

The child abuse material offence related to three short video clips found on the applicant's mobile phone, each less than two minutes long and involving children aged between five and ten years. Police also found over 2,200 computer-generated anime and manga images depicting young females in sexual scenarios on the applicant's computer, which were dealt with as a separate matter on a Form 1 (a document used to have additional offences taken into account at sentencing without imposing a separate penalty for each).

The District Court sentenced the applicant to an aggregate term of six years' imprisonment with a non-parole period of three years and ten months, commencing 23 June 2020. The applicant sought leave to appeal on two grounds.

  • Whether the sentencing judge erred in assessing the objective seriousness of two particular counts and two further matters taken into account on a Form 1
  • Whether the aggregate sentence of six years' imprisonment was manifestly excessive, having regard to the nature of the offending and the applicant's personal circumstances, including a diagnosed autism spectrum disorder

Decision

The Court granted leave to appeal and found that the sentencing judge had erred in the assessment of objective seriousness in relation to two specific elements of the offending. The first concerned count 1, an aggravated indecent assault involving the applicant squeezing the victim's buttocks over her clothing. The Court found this was properly characterised as low in objective seriousness, being the least serious form of aggravated indecent assault and the first offence in the sequence. The second concerned the possession offence (count 6): the three videos were short in duration, and the anime and manga images, while numerous, were computer-generated rather than recordings of actual abuse. The Court considered the sentencing judge had placed these matters at too high a level of objective seriousness.

A significant feature of the applicant's personal circumstances was his autism spectrum disorder. Expert evidence, including a report from a specialist psychologist who had assessed the applicant from the age of eight, indicated that his social and emotional reasoning was significantly delayed relative to his chronological age. The Court accepted that this condition was relevant both to his moral culpability and to the weight to be given to general deterrence as a sentencing consideration. These mitigating factors required more weight than the sentencing judge had applied.

On the question of manifest excess, the Court concluded that the errors in assessing objective seriousness, combined with insufficient weight given to the applicant's diagnosed condition, meant the sentence as a whole was excessive. Applying the principle of totality, which requires a court to step back and assess whether the combined effect of sentences for multiple offences is just and appropriate, the Court reduced the aggregate sentence from six years to five years. Adamson J agreed with the outcome but expressed a reservation about one aspect of Basten JA's methodology, specifically the use of a "grossed up" figure as a cross-check when working backwards from an aggregate sentence to individual indicative terms, noting this approach risked being misleading.

Orders Made

  • Leave to appeal against the aggregate sentence imposed in the District Court on 2 October 2020 was granted
  • The appeal was allowed and the original sentence was set aside
  • The applicant was resentenced to an aggregate term of five years' imprisonment, comprising a non-parole period of three years and three months from 23 June 2020, with a balance of term of one year and nine months
  • The applicant became eligible for release on parole on 22 September 2023

Key Takeaways

  • An aggravated indecent assault at the low end of the scale, particularly as a first act of offending in a sequence, should be assessed at a correspondingly low level of objective seriousness, and placing it higher constitutes a sentencing error.
  • Possession of child abuse material involving only three short video clips, accompanied by a large number of computer-generated (non-photographic) images, does not automatically warrant a high objective seriousness assessment; the nature and volume of the material both bear on that evaluation.
  • A diagnosed autism spectrum disorder, supported by expert evidence of delayed social and emotional development, can reduce an offender's moral culpability and diminish the weight properly given to general deterrence at sentencing.
  • The principle of totality requires a sentencing court to assess the combined effect of sentences for multiple offences, and errors in assessing individual components may infect the overall sentence in a way that justifies appellate intervention.
  • Adamson J's concurring reasons confirmed that a "grossed up" cross-check figure, derived by working backwards from an aggregate sentence, carries a risk of being misleading and should be treated with caution in the sentencing process.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66C, 66EB, 91H
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44, 54B

Cases:
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; 231 A Crim R 413
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243
- PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61