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Court of Criminal Appeal 18 March 2021

Culbert v R

[2021] NSWCCA 38

Sexual offences
CRIMINAL LAW SENTENCE APPEAL

Citation: Culbert v R [2021] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 18 March 2021
Judges: Hoeben CJ at CL; R A Hulme J; Adamson J

Background

The applicant was convicted by jury in the District Court on 19 counts of child sexual assault offences committed against three sisters, who were his nieces. The offending spanned 18 years, from 1982 to 2000, and included repeated acts of sexual intercourse with children under 10 years of age, indecent assault, and assault with acts of indecency. The victims were very young children at the time of the offending.

The sentencing judge imposed an aggregate sentence of 16 years imprisonment with a non-parole period of 10 years and 8 months, backdated to 10 September 2019. The applicant sought leave to appeal against that sentence.

A preliminary issue also arose at the hearing regarding a non-publication order that had been made in respect of the applicant's name.

  • Whether the sentencing judge erred in finding that the victim impact aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was made out, including whether there was any double-counting in the indicative sentences.
  • Whether the aggregate sentence of 16 years imprisonment was manifestly excessive.
  • Whether the non-publication order covering the applicant's name should remain in place.

Decision

Ground 1: Victim impact as an aggravating factor. The Court found that leave to appeal on the specific question of double-counting within Ground 1 should be refused. Although the applicant raised an arguable basis that some indicative sentences may have been inflated by error, this did not ultimately affect the outcome given the structure of the sentencing exercise.

Ground 2: Manifest excess. The Court was not satisfied that the aggregate sentence was manifestly excessive. To establish manifest excess, an applicant must show the sentence is unreasonable or plainly unjust, following Markarian v The Queen (2005) 228 CLR 357 and Dinsdale v The Queen (2000) 202 CLR 321. Even accepting arguable inflation in some indicative sentences, the Court held that any such error had not affected the aggregate sentence. The Court noted the substantial gap between the sum of the indicative sentences (approximately 130 years) and the 16-year head sentence, reflecting the significant concurrence applied by the sentencing judge.

The Court emphasised that the offending was sustained over 18 years, involved three separate victims, and had devastating consequences for each of them. These features supported the sentence imposed. The Court also found no non-compliance with s 25AA of the Crimes (Sentencing Procedure) Act 1999.

Non-publication order. At the outset, the Court revoked the non-publication order covering the applicant's name. A suppression order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) must be grounded in one of the bases set out in s 8. The victims indicated they had no objection to the applicant's name being published, and the applicant provided no relevant justification. No grounds within s 8 were established, so the order was revoked. Non-publication orders protecting any information or material that may identify the victims remain in place.

Orders Made

  • The non-publication order made by Judge Weber SC in respect of the applicant's name is revoked.
  • Leave to appeal against that part of Ground 1 raising the issue of double counting is refused.
  • Otherwise, leave to appeal against sentence is granted.
  • The appeal is dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that manifest excess requires demonstration that a sentence is unreasonable or plainly unjust, not merely that an error may have occurred in an individual indicative sentence.
  • Arguable inflation in individual indicative sentences will not establish manifest excess where the aggregate sentence, viewed overall, is not shown to have been affected by that error.
  • Where a large volume of serious offending attracts indicative sentences totalling many multiples of the final head sentence, the extent of the discount applied through concurrence weighs against a finding of manifest excess.
  • Under s 7 and s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW), a non-publication order covering an applicant's name cannot be maintained without a recognised statutory ground, and the absence of any objection from victims and any justification from the applicant will not themselves supply such a ground.
  • Sustained offending over many years against multiple victims, producing serious harm to each, is a relevant consideration supporting the weight of an aggregate sentence on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 61M(2), 61O(2), 66A, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 25AA
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Obeid v R [2017] 96 NSWLR 155; [2017] NSWCCA 221
- R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Corliss v R [2020] NSWCCA 65
- Gagan (a pseudonym) v R [2020] NSWCCA 47