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Court of Criminal Appeal 26 November 2021

BR v R

[2021] NSWCCA 279

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE TEN FORM 1 OFFENCES TAKEN INTO ACCOUNT PAROLE PERIOD OF 22 YEARS AND 6 MONTHS

Citation: BR v R [2021] NSWCCA 279
Court: NSW Court of Criminal Appeal
Date: 26 November 2021
Judges: Payne JA, Davies J, Ierace J

Background

The applicant pleaded guilty in the District Court to 13 child sexual offences committed against three victims over a period of approximately 19 years, from 1991 to 2010. The victims were his biological daughter, a stepdaughter, and a step-granddaughter. Ten additional offences were taken into account on Form 1 certificates. The offending involved repeated sexual intercourse and indecent assault, beginning when the primary victim was four years old.

The sentencing judge imposed an aggregate sentence of 30 years imprisonment with a non-parole period of 22 years and 6 months. The applicant applied for leave to appeal on the sole ground that the aggregate sentence was manifestly excessive.

A psychologist had diagnosed the applicant with major depressive disorder and generalised anxiety disorder, conditions first identified before his arrest and said to have been exacerbated by imprisonment. The sentencing judge gave little or no weight to that psychological evidence. The sentencing judge also noted the applicant would likely be held in protective custody for the duration of his sentence, but the extent to which this was factored into the sentence was in dispute.

  • Whether the aggregate sentence of 30 years with a non-parole period of 22 years and 6 months was manifestly excessive, given the subjective circumstances of the offender and his guilty pleas
  • Whether the sentencing judge erred in giving little or no weight to the psychologist's report diagnosing major depressive disorder and generalised anxiety disorder
  • Whether the applicant's mental health conditions were relevant to his experience of incarceration
  • Whether the sentencing judge adequately considered the impact of protective custody on the applicant

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding the sentence manifestly excessive in light of the applicant's subjective circumstances, including the guilty pleas and his mental health conditions. Ierace J, with whom Payne JA and Davies J agreed, conducted a resentencing exercise and imposed a reduced aggregate sentence.

On the psychological evidence, Payne JA expressed concern about the approach taken by the sentencing judge. His Honour noted that, while a psychologist may generally be in a less favourable position than a psychiatrist to diagnose conditions under the DSM-5 framework, the psychologist's report had been tendered in these proceedings without objection, and the Crown had not raised the criticisms that the sentencing judge later made. Payne JA described those criticisms as unwarranted in the circumstances.

On resentence, Ierace J accepted the psychologist's diagnoses and found that the applicant's depressive and anxiety disorders had been enlivened and exacerbated by imprisonment, particularly by his awareness that he remained a continuing target for violence from the general prison population. His Honour also took into account the restrictive conditions of protective custody and the additional constraints arising from Covid-19 management in prisons.

Ierace J found that the combined effect of the likely protective custody for the duration of the sentence and its exacerbation of the applicant's mental condition constituted special circumstances warranting a modest reduction in the ratio of the non-parole period to the balance of term, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The indicative sentences set by the sentencing judge were otherwise confirmed, including the 5 per cent discount for the late guilty pleas.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 25 June 2020 quashed
  • In lieu thereof, the applicant sentenced to 28 years imprisonment, commencing 17 May 2018 and expiring 16 May 2046, with a non-parole period of 20 years expiring 16 May 2038

Key Takeaways

  • An aggregate sentence of 30 years with a non-parole period of 22 years and 6 months, following guilty pleas and in the context of diagnosed mental health conditions, was held to be manifestly excessive. The Court of Criminal Appeal substituted a sentence of 28 years with a non-parole period of 20 years.
  • Where a psychological report is tendered at sentence without objection from the Crown, a sentencing judge's adverse criticisms of that evidence, particularly criticisms not raised by any party, may be unwarranted and cannot be sustained on appeal.
  • Accepted diagnoses of major depressive disorder and generalised anxiety disorder, first identified before arrest and exacerbated by custody, are relevant sentencing considerations going to the offender's experience of imprisonment.
  • Likely placement in protective custody for the full duration of a sentence, combined with diagnosed mental health conditions that protective custody exacerbates, can constitute special circumstances justifying a reduction in the ratio of the non-parole period to the balance of term under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Manifest excess, like manifest inadequacy, is a conclusion rather than a ground in itself. The gravity and extent of the offending did not prevent the Court from finding the total sentence excessive when all subjective circumstances were properly weighed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 61E, 66A, 66C, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 25D, 25AA, 33, 44, 53A, 54B
- Drug Misuse and Trafficking Act 1985 (NSW), s 10

Cases:
- R v BR [2020] NSWDC 335 (decision under appeal)
- State of New South Wales v Wainwright (Preliminary) [2019] NSWSC 1603
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (NSW) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- C v R (2013) 229 A Crim R 233; [2013] NSWCCA 81
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- WM v R [2020] NSWCCA 96
- Zahab v R [2021] NSWCCA 7
- MRW v R [2011] NSWCCA 260
- PD v R [2012] NSWCCA 242
- Cabezuela v R [2020] NSWCCA 107