AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
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: Court of Criminal Appeal
Date: 05 November 2021
Judge(s): Beech-Jones CJ at CL; R A Hulme J; Dhanji J

Background

An applicant (referred to by pseudonym to protect the victim's identity) pleaded guilty in the District Court at Campbelltown to multiple offences including incest, assault occasioning actual bodily harm, aggravated indecent assault, and inciting an aggravated act of indecency. The offences involved his daughter and were part of a course of conduct spanning several years. The sentencing judge imposed an aggregate term of 16 years imprisonment with a non-parole period of 12 years, backdated to 29 January 2020.

The applicant sought leave to appeal on two grounds: first, that the sentencing judge failed to have regard to favourable evidence bearing on three statutory mitigating factors (remorse, rehabilitation prospects, and likelihood of reoffending); and second, that the aggregate sentence was manifestly excessive.

Legal Issues

  • Whether the sentencing judge erred by failing to consider evidence relevant to the mitigating factors of remorse, good rehabilitation prospects, and unlikelihood of reoffending
  • Whether the aggregate sentence of 16 years was manifestly excessive having regard to the total criminality of the conduct, the applicable maximum penalties, and the applicant's subjective circumstances
  • Whether special circumstances existed justifying a reduction in the non-parole period
  • Whether suppression and non-publication orders made in the District Court were necessary, given existing statutory protections

Decision

Ground 1: Alleged failure to consider mitigating factors

The Court rejected this ground entirely (at [7]). Defence counsel in the District Court had conceded at sentence that each of the three mitigating factors was not established. The Court confirmed that where counsel makes such concessions, it is not incumbent on a sentencing judge to go behind those concessions and refer to every piece of potentially relevant evidence (at [56]). The applicant's expressions of remorse during a pre-text telephone call with the victim were undermined by his subsequent victim-blaming account to the psychologist, making it unsurprising that counsel did not press the point (at [54]). No error was established in the judge's findings (at [56]-[57]).

Ground 2: Manifest excess

The Court upheld this ground. Although the sentencing judge's assessment of the objective seriousness of each offence was unchallenged and correct (at [73]), the starting points for each indicative sentence sat at or very close to the maximum penalty, despite none of the offences being found to fall in the worst case category (at [68]). The total of the indicative sentences was 22.5 years against an aggregate of 16 years, reflecting a degree of notional accumulation that substantially diluted the benefit of the applicant's guilty pleas (at [70]). The differential between the indicative sentences and the aggregate could not be explained by the Form 1 offences alone.

Special circumstances

The Court found no basis to reduce the non-parole component below the statutory ratio. Nothing sufficiently special existed in the applicant's subjective case that had not already been accounted for in setting the overall sentence term (at [78]).

Suppression orders

The Court held that the District Court's suppression and non-publication orders were unnecessary. The statutory prohibitions in section 15A of the Children (Criminal Proceedings) Act 1987 and section 578A of the Crimes Act 1900 already applied by default to prohibit publication of anything identifying the victim, including the applicant's name given his relationship to her (at [9]).

Orders Made

  • Leave to appeal granted and appeal allowed
  • Sentence imposed in the District Court on 29 October 2020 quashed
  • Applicant resentenced to an aggregate term of 10 years imprisonment with a non-parole period of 7 years and 6 months, commencing 29 January 2020 (non-parole period expiring 28 July 2027)
  • Suppression and non-publication orders made in the District Court on 20 August 2020 revoked; application of section 15A of the Children (Criminal Proceedings) Act 1987 and section 578A of the Crimes Act 1900 noted in lieu

Key Takeaways

  • Where defence counsel at sentence concedes that a statutory mitigating factor is not established, a sentencing judge is not required to go behind that concession and consider every piece of evidence that might have been relevant to it (at [56]-[57]).

  • The Court of Criminal Appeal confirmed that incest under section 78A(1) of the Crimes Act 1900 does not require lack of consent as an essential element, but sentencing on the basis that a victim was not consenting and the offender knew it would risk transgressing the De Simoni principle, since those additional elements constitute a more serious offence (at [11]).

  • Starting points for indicative sentences that sit at or near the maximum penalty, where no offence has been assessed in the worst case category, may produce an aggregate that is manifestly excessive when combined with a high degree of notional accumulation, particularly where the guilty plea discount is substantially diluted as a result (at [68]-[70]).

  • Four features of the incest offending were identified as elevating objective seriousness above mid-range: the victim was at the lowest end of the relevant age range; the father-daughter relationship involved a clear and significant breach of trust; the offences were part of a course of conduct rather than isolated incidents; and the victim was not a willing participant (at [65]).

  • Specific suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2006 need not be made where existing statutory prohibitions already achieve the same protective effect; the Court noted that the default statutory regime applied here to protect both the victim's identity and, as a consequence, the applicant's name (at [9]).

Legislation and Cases Referenced

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

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