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Court of Criminal Appeal 8 November 2021

Veljanoski v R

[2021] NSWCCA 255

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE AGGREGATE SENTENCE IMPOSED WHERE AGE WAS AN ELEMENT OF THE OFFENCE WHERE ERRORS CONCEDED BY CROWN

Citation: Veljanoski v R [2021] NSWCCA 255
Court: Court of Criminal Appeal, NSW
Date: 8 November 2021
Judge(s): Harrison J, Davies J, Dhanji J

Background

The applicant pleaded guilty in the Local Court to five offences arising from two separate episodes in July and August 2019. The offending involved the applicant approaching women and girls while driving and masturbating in front of them. The victims ranged in age from 11 to 66 years, and one victim was a 15-year-old child.

The applicant was sentenced in the District Court in August 2020 to an aggregate term of five years and eight months' imprisonment, with a non-parole period of three years and eight months. The applicant had a background of alcohol and substance use issues, mild intellectual disability, and anxiety and depressive disorders, all of which were assessed in two psychological reports tendered at the sentence hearing.

The applicant sought leave to appeal on six grounds, arguing that the sentencing judge made several legal errors in determining the indicative sentences and in identifying and applying aggravating factors.

  • Whether the sentencing judge erred by imposing an indicative sentence equal to the maximum penalty for the offence in Count 5, when the objective seriousness was found to be in the mid-range
  • Whether the judge erred by failing to find reduced moral culpability arising from the applicant's intellectual limitations
  • Whether the judge erred by treating psychological harm to victims as an aggravating factor
  • Whether the judge erred by treating victim vulnerability as an aggravating factor in Count 2, when the victim's age was already an element of the offence under s 66DD(a) of the Crimes Act 1900 (NSW)
  • Whether the judge erred in assessing the objective gravity of the offending
  • Whether the sentence was manifestly excessive
  • Whether a further psychological report obtained after sentencing was admissible for resentencing purposes

Decision

The Crown conceded two errors. First, the sentencing judge imposed an indicative sentence of 18 months for Count 5, which was the maximum penalty for that offence, despite having found the objective seriousness to be in the mid-range. The judge also applied a 25 per cent discount for the applicant's early guilty plea but failed to reduce the indicative sentence by that discount. Second, the judge impermissibly used the victim's age as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) in relation to Count 2, when age was already a constituent element of the offence under s 66DD(a) of the Crimes Act.

On the remaining grounds, the Court found that the sentencing judge had considered the applicant's intellectual disability but declined to give it significant weight, which was open on the evidence. The Court also accepted that treating psychological harm to victims as an aggravating feature was not established as error given the nature of the offending. The two conceded errors were sufficient to warrant intervention.

On the question of fresh evidence, the applicant sought to tender a further psychological report prepared after sentencing. The Court declined to admit it. Applying the principles in Betts v The Queen (2016) 258 CLR 420, the report was not fresh or new evidence in the relevant sense and was not the kind of report typically admitted on resentencing, namely evidence of progress toward rehabilitation since the sentence hearing. The Court found no exceptional circumstances and no miscarriage of justice from its rejection, particularly as the report added little to what the sentencing judge had already considered.

The Court resentenced the applicant to an aggregate term of two years and eight months' imprisonment commencing 23 March 2020, with a non-parole period of one year and eight months. This represented a substantial reduction from the original sentence and took into account the totality principle, given that part of the applicant's pre-sentence custody was also referable to a separate break and enter conviction.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Judge Woods QC on 4 August 2020 quashed
  • Applicant resentenced to an aggregate term of two years and eight months' imprisonment commencing 23 March 2020 and expiring 22 November 2022, with a non-parole period of one year and eight months expiring 22 November 2021
  • Earliest date for release on parole: 22 November 2021

Key Takeaways

  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court cannot treat a victim's characteristic as an aggravating factor where that characteristic is already an element of the offence. Doing so amounts to double-counting.
  • Where a sentencing judge finds an offence's objective seriousness to be in the mid-range, imposing an indicative sentence at the maximum penalty is legally inconsistent with that finding and constitutes error.
  • A discount for an early guilty plea must flow through to the indicative sentence. Failing to apply the discount when calculating the indicative sentence, having expressly recognised it, is an error warranting appellate correction.
  • A further psychological report obtained after sentencing is not automatically admissible on resentencing. The Court of Criminal Appeal confirmed it must qualify as fresh or new evidence, or show evidence of rehabilitation since sentence. A report that merely reassesses the offender's pre-existing condition without demonstrating progress does not meet that threshold.
  • In applying the totality principle, the Court backdated the new aggregate sentence to account for pre-sentence custody that was partly referable to a separate custodial sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61KE, 66DD
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Khoury v R [2011] NSWCCA 118
- Lawless v The Queen (1979) 142 CLR 659