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Court of Criminal Appeal 22 March 2021

Hillman v R

[2021] NSWCCA 43

Sexual offencesAssault & violence
CRIMINAL LAW SENTENCE APPEAL SENTENCE APPEAL ALLOWED NEED TO RE SENTENCE.

Citation: Hillman v R [2021] NSWCCA 43
Court: Court of Criminal Appeal, NSW
Date: 22 March 2021
Judges: Hoeben CJ at CL (principal judgment); Price J and Davies J (agreeing)

Background

The appellant was the stepfather of the primary victim, JC, whom he sexually abused over approximately nine years, commencing when she was six years old. The abuse began in New Zealand and continued after the family relocated to New South Wales, escalating to repeated penile penetration. He also physically assaulted JC in a separate incident and committed aggravated indecent assaults against two other child victims.

The appellant pleaded guilty in the Local Court to four offences: persistent sexual abuse of a child under s 66EA of the Crimes Act 1900 (NSW); assault occasioning actual bodily harm; and two counts of aggravated indecent assault. The sentencing judge in the District Court imposed an aggregate sentence of 21 years imprisonment with a non-parole period of 15 years and 9 months.

The appellant sought leave to appeal against sentence on three grounds, arguing that the sentencing judge misassessed his rehabilitation prospects, erred in assessing the objective criminality of the non-s 66EA offences, and imposed a manifestly excessive sentence.

  • Whether the sentencing judge erred in assessing the appellant's prospects of rehabilitation, particularly by failing to give adequate weight to favourable factors.
  • Whether the sentencing judge erred in the objective assessment of the seriousness of the offences, including by failing to account for the fact that six of the particularised incidents occurred in New Zealand, where lower maximum penalties applied.
  • Whether the sentencing judge erred in the method of applying the guilty plea discount, specifically by applying it to the aggregate sentence rather than to the individual indicative sentences.
  • Whether the aggregate sentence was manifestly excessive.

Decision

On the rehabilitation ground, the Court of Criminal Appeal found some merit in the argument but did not treat this as the principal basis for allowing the appeal. The Court accepted that the sentencing judge's treatment of rehabilitation was not wholly satisfactory given the available material, though the subjective case overall was described as "not particularly compelling."

On the objective seriousness ground, the Court agreed that the sentencing judge's assessment of the non-s 66EA offences was excessive when considered alongside the gravity of the persistent abuse offence, which spanned ten years. The Court confirmed that the offending overall sat well above the mid-range of seriousness but did not approach the worst-case category described in Hitchen v R.

Critically, the Court identified a clear sentencing error in the method used to apply the guilty plea discount. The sentencing judge had applied the discount to the aggregate sentence rather than to the individual indicative sentences before constructing the aggregate. Following Jackson v R [2021] NSWCCA 15 and Burr v R [2020] NSWCCA 282, the Court held this approach was legally erroneous. The indicative sentences had played only a minor role in formulating the aggregate sentence, compounding the error.

Because error was established, the Court resentenced the appellant. It reduced the aggregate sentence to 19 years imprisonment with a non-parole period of 14 years, commencing from the original date of arrest.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed by Shead SC DCJ on 26 July 2019 quashed.
  • Aggregate sentence of 19 years imprisonment imposed, with a non-parole period of 14 years, commencing 29 January 2018; eligible for parole 28 January 2032.
  • Indicative sentences:
  • Sequence 7 (s 66EA, persistent sexual abuse of JC): 14 years and 6 months.
  • Sequence 8 (s 59(1), assault occasioning actual bodily harm, JC): 2 years and 7 months.
  • Sequence 3 (s 61M(2), aggravated indecent assault, TG): 3 years and 9 months, with a non-parole period of 2 years and 9 months.
  • Sequence 4 (s 61M(2), aggravated indecent assault, AM): 3 years, with a non-parole period of 2 years and 3 months.

Key Takeaways

  • Applying a guilty plea discount to an aggregate sentence rather than to the individual indicative sentences before constructing that aggregate constitutes a legal error in the sentencing process, as confirmed by the Court of Criminal Appeal following Jackson v R and Burr v R.
  • Under s 66EA of the Crimes Act 1900 (NSW), the fact that some particularised ingredient offences occurred in another jurisdiction with lower maximum penalties is a relevant consideration when assessing objective seriousness, even where the overall charge is brought under NSW law.
  • Where persistent sexual abuse of a child spans ten years and includes repeated acts of penile penetration, the Court of Criminal Appeal confirmed the offending may sit well above the mid-range of seriousness without necessarily constituting a worst-case scenario.
  • A dearth of comparable sentencing cases under s 66EA continues to present difficulty, particularly given the substantial amendments made to the section by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW).
  • In resentencing, the Court of Criminal Appeal reduced the aggregate sentence from 21 years to 19 years, with the non-parole period reduced from 15 years and 9 months to 14 years, reflecting the corrected approach to indicative sentences and the guilty plea discount.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 61M(2), 66A(2), 66C(2), 66C(4), 66EA
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)

Cases:
- Burr v R [2020] NSWCCA 282
- Hitchen v R [2010] NSWCCA 77
- Jackson v R [2021] NSWCCA 15
- Langbein v R [2008] NSWCCA 38
- Mills v R [2017] NSWCCA 87
- Mulato v Regina [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5
- R v Wilson [2005] NSWCCA 219
- Stoeski v Regina [2014] NSWCCA 161
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460