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6
Court of Criminal Appeal 3 December 2021

BB v R

[2021] NSWCCA 283

Sexual offences

Citation: BB v R [2021] NSWCCA 283
Court: NSW Court of Criminal Appeal
Date: 3 December 2021
Judge(s): Bathurst CJ, Wright J, Wilson J (Wilson J delivering the principal judgment)

Background

The applicant, referred to as BB, was sentenced in the District Court in November 2020 following his guilty pleas to seven counts of indecently assaulting a child under ten years, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The victim was his daughter, who was aged seven and eight at the time of the offending, which occurred between May 2004 and May 2006. A further four offences of the same character were taken into account on Form One documents.

The offending followed a pattern the applicant himself described as a "ritual." Each incident occurred when the applicant and his daughter were alone in his bed, and involved him touching her genitals under the guise of "tickling." The offences took place at the applicant's Chatswood home and his Central Coast holiday property during periods when the victim stayed with him following his separation from her mother.

The victim disclosed the abuse in 2016 and subsequently provided a victim impact statement describing years of severe psychological harm, including Complex PTSD, suicidal ideation, and a suicide attempt. Expert medical evidence before the sentencing court supported the gravity of her ongoing condition. The District Court imposed an aggregate sentence of four years imprisonment with a non-parole period of two years. The applicant sought leave to appeal on the sole ground of manifest excess.

  • Whether the aggregate sentence of four years imprisonment with a two-year non-parole period was manifestly excessive for seven counts of indecently assaulting a child under ten, with four further offences taken into account.
  • Whether comparable cases established a sentencing range that rendered the sentence imposed outside the bounds of judicial discretion.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no manifest excess in the sentence imposed by the District Court.

Wilson J examined the nature and circumstances of the offending in detail. The offences were not isolated incidents but formed a prolonged, repeated course of conduct over approximately two years. The applicant was the victim's father, placing the offending squarely within a serious breach of trust. The sentencing court had appropriately weighed the applicant's guilty pleas, absence of prior criminal history, and other subjective factors against the gravity of conduct that caused severe and lasting harm to the victim.

The applicant relied on a number of previous decisions to argue that the sentence was incongruous with comparable cases. Wilson J found that none of those cases were realistically comparable to the circumstances before the Court, given differences in the nature and number of offences, the duration of the conduct, and the relationship between offender and victim. The Court noted that where no useful sentencing range can be established by reference to prior cases, a complaint of manifest excess cannot succeed merely by pointing to more lenient outcomes in different factual circumstances.

The Court also considered the applicant's post-offence conduct, including recorded conversations in which he minimised the offending, questioned the reliability of his daughter's account, and dismissed the diagnosis of PTSD as disproportionate. These matters were relevant to the sentencing assessment. Having regard to all factors, the Court was satisfied the sentence was neither unfair nor unjust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a complaint of manifest excess cannot succeed where no useful sentencing range can be established from prior cases, particularly where the factual circumstances differ materially from those relied upon for comparison.
  • A prolonged, repeated course of indecent assault by a parent against a young child constitutes a serious breach of trust, and the sentencing court is entitled to treat this as a significant aggravating feature.
  • Where an offender minimises the harm caused to a victim after the offending, including questioning the victim's credibility and the legitimacy of a PTSD diagnosis, such conduct is a relevant consideration available to a sentencing court.
  • The inherent sexual character of indecent assault offences, even where framed by the offender as innocuous physical contact, does not diminish the gravity of the conduct or the harm inflicted on the victim.
  • No error was established in the District Court's exercise of sentencing discretion; the aggregate sentence of four years with a two-year non-parole period fell within the range available to the sentencing judge on the facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v BB [2020] NSWDC 737 (sentence under appeal)
- Berryman v R [2017] NSWCCA 297
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Chartres-Abbott v R [2021] NSWCCA 239
- Davies v R [2019] NSWCCA 45
- EG v R [2015] NSWCCA 21
- Elsaj v R [2017] NSWCCA 124
- Glare v R [2015] NSWCCA 194
- Harkin v R (1989) 38 A Crim R 296
- Ibbotson v R [2020] NSWCCA 92
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Mayall v R [2010] NSWCCA 37
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- PG v R (2017) 268 A Crim R 61; [2007] NSWCCA 179
- R v Cahill [2015] NSWCCA 53
- R v Dunn (NSW Court of Criminal Appeal, 15 April 1992, unreported)
- R v O [2005] NSWCCA 327
- R v Stoupe [2015] NSWCCA 175
- R v Toohey [2019] NSWCCA 182
- RC v R; R v RC [2020] NSWCCA 76