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Court of Criminal Appeal 5 November 2021

Carrington v R

[2021] NSWCCA 257

Sexual offencesAssault & violenceDomestic & family violence
CRIME SENTENCE APPEAL GROUND DISMISSED CRIME SENTENCE APPEAL MANIFEST EXCESS AGGREGATE SENTENCE

Citation: Carrington v R [2021] NSWCCA 257
Court: NSW Court of Criminal Appeal
Date: 5 November 2021
Judges: Beech-Jones CJ at CL; R A Hulme J; Dhanji J

Background

The applicant (referred to by a pseudonym to protect the identity of the victim, his daughter) was sentenced in the District Court at Campbelltown on 29 October 2020. He had pleaded guilty to a series of offences committed against his daughter over a number of years, including three counts of assault occasioning actual bodily harm, one count of inciting an aggravated act of indecency, and three counts of incest. A number of further offences were taken into account on Form 1 documents (a procedural mechanism by which offences are acknowledged and factored into the overall sentence without being separately sentenced). A 25% discount was applied to reflect the utilitarian value of the guilty pleas.

The District Court imposed an aggregate sentence of 16 years' imprisonment with a non-parole period of 12 years, backdated to 29 January 2020. The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds.

  • Whether the sentencing judge erred by failing to give adequate weight to positive evidence concerning three statutory mitigating factors: remorse, prospects of rehabilitation, and likelihood of reoffending.
  • Whether the aggregate sentence of 16 years was manifestly excessive.
  • Whether the suppression and non-publication orders made by the sentencing judge were necessary, or whether statutory prohibitions already provided the required protection.

Decision

Ground 1: Mitigating factors. The Court dismissed this ground. Defence counsel at first instance had conceded that none of the three statutory mitigating factors were established, meaning the applicant's appeal was inconsistent with the case actually run below. The Court found that the sentencing judge's reasons, read in the context in which they were delivered, disclosed no error. Where a concession is made at sentencing, the applicant cannot later complain that the judge failed to positively find the factor conceded to be absent.

Ground 2: Manifest excess. The Court upheld this ground. The indicative sentences for several offences had starting points close to the maximum penalty, a level reserved for the most serious instances of the relevant offence. The Court found that the significant gap between those indicative sentences and the aggregate could not be adequately explained by the Form 1 offences alone. Applying proper sentencing principles to the objective gravity of the offending, including the father-daughter relationship, the breach of trust, the victim's age at the lower end of the applicable range, the sustained course of conduct, and the victim's lack of willing participation, the Court concluded the aggregate sentence was manifestly excessive.

The De Simoni principle. The Court noted a specific nuance concerning the incest offences. Incest under s 78A(1) of the Crimes Act 1900 does not require proof of a lack of consent. However, sentencing an offender on the basis that the victim was not consenting and that the offender knew this would engage the principle in R v De Simoni, because knowledge of non-consent is an element of a more serious offence (relevantly, rape). The resentencing therefore proceeded on the basis that the victim was not a willing participant, but without attributing to the applicant knowledge of that fact.

Suppression orders. The Court found the formal suppression and non-publication orders made at first instance were unnecessary. Statutory provisions under s 15A of the Children (Criminal Proceedings) Act 1987 and s 578A of the Crimes Act 1900 already prohibited publication of material identifying the victim by default, and because publication of the applicant's name would tend to identify his daughter, those statutory prohibitions extended to his name as well.

Orders Made

  • Leave to appeal granted and the appeal allowed.
  • The sentence imposed in the District Court on 29 October 2020 was quashed.
  • The applicant was resentenced to an aggregate term of imprisonment of 10 years with a non-parole period of 7 years and 6 months, commencing 29 January 2020. The non-parole period expires on 28 July 2027.
  • The suppression order and non-publication order made in the District Court were revoked. In lieu, the Court noted the application of s 15A of the Children (Criminal Proceedings) Act 1987 and s 578A of the Crimes Act 1900 prohibiting identification of the victim and the offender.

Key Takeaways

  • A ground of appeal alleging failure to give weight to statutory mitigating factors will not succeed where defence counsel at first instance expressly conceded those factors were not established. The Court of Criminal Appeal treats such a concession as defining the case actually put, and an appeal inconsistent with that case discloses no error.
  • The De Simoni principle operates to prevent a sentencing court from treating non-consent and knowledge of it as aggravating features when those elements would constitute a more serious offence than the one charged. In this decision, the Court resentenced on the basis that the victim was not a willing participant, but without attributing to the applicant knowledge of her non-consent.
  • Indicative starting points set close to the maximum penalty must be commensurate with the most serious examples of the offence. Where the arithmetic between indicative sentences and the aggregate cannot be explained by Form 1 offences, manifest excess may be established.
  • Formal suppression and non-publication orders are unnecessary where statutory prohibitions already achieve the same protective effect by default. The Court of Criminal Appeal revoked the orders below and substituted a notation of the applicable statutory provisions.
  • In dismissing the appeal on Ground 1 and upholding it on Ground 2, the Court reduced the aggregate sentence from 16 years (non-parole 12 years) to 10 years (non-parole 7 years and 6 months), reflecting proper application of sentencing principles rather than any different assessment of objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 61M(1), 61O, 78A(1), 578A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Court Suppression and Non-publication Orders Act 2006 (NSW)

Cases:
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- 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
- R v West [2014] NSWCCA 250