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Court of Criminal Appeal 13 December 2021

Doyle v R

[2021] NSWCCA 297

Sexual offences
SENTENCING YEAR PERIOD FIVE VICTIMS AGGREGATE SENTENCE ERRONEOUS REFERENCE TO STANDARD NON PAROLE PERIOD

Citation: Doyle v R [2021] NSWCCA 297
Court: NSW Court of Criminal Appeal
Date: 13 December 2021
Judges: Beech-Jones CJ at CL; R A Hulme J; Dhanji J

Background

The appellant was a 78-year-old former movie theatre owner who, between 1978 and 2010, sexually preyed on young male employees at his Kogarah cinema. He was ultimately convicted of six sexual offences against five victims, with a further eight similar offences taken into account on prosecutor's forms (Form 1s) at sentencing.

The appellant entered guilty pleas just before his trial commenced in September 2020. In February 2021, Judge Mahony SC in the District Court imposed an aggregate sentence of 6 years 6 months imprisonment, with a non-parole period of 4 years commencing from July 2018.

The appellant sought leave to appeal against that sentence, arguing that errors in the sentencing judge's reasoning warranted a reduction.

  • Whether the sentencing judge erred by making reference to a standard non-parole period (SNPP) in circumstances where none applied to the relevant offence
  • Whether the sentencing judge erred in treating certain matters as aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, including prior convictions and the commission of offences in the offender's home
  • Whether any error established warranted the imposition of a lesser sentence

Decision

The Court granted leave to appeal and acknowledged two conceded errors in the sentencing judgment. The first was an erroneous reference to a standard non-parole period in relation to an offence for which no SNPP applied. The second concerned the treatment of certain aggravating factors under s 21A(2).

Hulme J identified further problems with the primary judge's approach to aggravating factors. His Honour declined to adopt the finding that the appellant had a record of prior convictions for similar offences, because those earlier offences were committed within substantially the same period as the offences being sentenced and were, as the Crown accepted, interwoven with them. Hulme J also declined to treat the commission of offences at the appellant's home as an aggravating factor, noting the sentencing judge had given no reason why that location made the offences worse than those committed at the cinema.

Hulme J also criticised the practice of treating s 21A(2) as a checklist to be worked through at the end of sentencing remarks, citing commentary from Howie J warning that this approach risks double-counting or applying irrelevant factors. Despite these errors, all three members of the Court independently undertook the resentencing exercise and reached the same conclusion: no lesser sentence was warranted. The appeal was therefore dismissed.

On the question of transparency, Hulme J expressed a preference for setting out the reasoning behind a guilty plea discount more explicitly, rather than simply stating a percentage that does not explain a result expressed in round numbers.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Two sentencing errors were conceded, including an erroneous reference to a standard non-parole period, yet the Court of Criminal Appeal held that neither error warranted a reduction in the overall sentence.
  • Prior convictions for similar offences committed within substantially the same period as the offences being sentenced do not constitute an aggravating factor under s 21A(2)(d) merely because they happened to be disclosed and prosecuted earlier.
  • Treating the commission of offences at the offender's home as an aggravating factor under s 21A(2)(eb) requires a reason why that circumstance made the offending more serious; a bare assertion is insufficient.
  • Applying s 21A(2) as a standalone checklist at the end of sentencing remarks, rather than as part of the integrated sentencing exercise, carries a real risk of double-counting or taking irrelevant matters into account.
  • Where a court undertakes the resentencing exercise on appeal and independently arrives at the same sentence as the primary judge, the appeal will be dismissed even where error is established.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A(2), 32(1), 53A
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes Act 1900 (NSW), including ss 61M(1), 61M(2), 61N(1), 81

Cases:
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Campbell v R [2018] NSWCCA 17
- Doyle v R; R v Doyle [2014] NSWCCA 4
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- LN v R [2020] NSWCCA 131
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Porter v R [2019] NSWCCA 117
- R v Doyle [2021] NSWDC 21
- Rizk v R [2020] NSWCCA 291
- RO v R [2019] NSWCCA 183