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Court of Criminal Appeal 28 April 2021

Aboud v R

[2021] NSWCCA 77

Sexual offences
CRIMINAL LAW SENTENCE WHERE THE APPELLANT HAD CO OPERATED WITH AUTHORITIES OPERATION LEAVE TO APPEAL GRANTED

Citation: Aboud v R [2021] NSWCCA 77
Court: Court of Criminal Appeal, New South Wales
Date: 28 April 2021
Judges: Simpson AJA, Bellew J, Wilson J

Background

The appellant pleaded guilty in the Local Court in March 2016 to six offences under the Criminal Code 1995 (Cth): one count of using a carriage service to menace, harass or offend, four counts of using a carriage service to groom a person under 16 years for sexual activity, and one count of using a carriage service to procure a person under 16 years for sexual activity. The offending involved the appellant creating two false Facebook identities, presenting himself as a young man in his late twenties when he was in fact 47, and using these accounts to target teenage girls aged between 13 and 15.

The appellant's conduct was predatory and sustained. He flattered and bribed victims to obtain sexually explicit photographs, threatened to expose conversations to their parents when victims were unresponsive, and in some cases used photographs already obtained as leverage to extract further material. He promised some victims accommodation, drinks, and cash as a prelude to sexual activity with an "older friend" who was, in fact, the appellant himself.

In July 2016, the District Court imposed a total sentence of seven years' imprisonment with a non-parole period of five years and three months. The appellant's first leave-to-appeal application was refused. He then brought a separate statutory inquiry application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), arguing the sentencing judge had failed to account for the utilitarian value of his guilty plea, a requirement clarified after his sentencing by the Court of Criminal Appeal in Xiao v R. Button J found the argument "very arguable" and referred the matter to the Court of Criminal Appeal to be dealt with as a sentence appeal.

  • Whether the sentencing judge erred by failing to take into account the utilitarian value of the appellant's guilty plea when sentencing a federal offender, following the principles confirmed in Xiao v R
  • If error was established, whether the Court of Criminal Appeal should exercise its sentencing discretion afresh and impose a lesser sentence
  • Whether the appellant's cooperation with authorities warranted a specific additional discount
  • What weight to give mitigating factors including remorse, the early plea, and absence of prior criminal history, against the gravity and duration of the offending
  • The proper construction of s 6(3) of the Criminal Appeal Act 1912 (NSW), particularly the phrase "warranted in law and should have been passed," in the context of resentencing after established error

Decision

The Court accepted that the sentencing judge had erred by failing to apply a utilitarian discount for the appellant's guilty pleas, consistent with the principles confirmed in Xiao v R. That error was sufficient to require the Court to exercise its sentencing discretion afresh, independently of the sentence imposed at first instance, as required by the High Court's approach in Kentwell v The Queen.

In exercising that fresh discretion, the Court considered several mitigating factors in the appellant's favour: his plea was entered at the first available opportunity, he cooperated with authorities from the outset by voluntarily providing police with passwords and account access, he demonstrated genuine remorse, and he had no prior criminal history. The Court noted, however, that the appellant's cooperation was substantially reflected in the early plea itself, and did not warrant a separate additional discount.

Against those factors, the Court weighed the seriousness of the offending. The conduct was planned, involved the deliberate creation of false identities, extended over a sustained period, and was directed at multiple vulnerable teenage victims. The sentencing judge had found the behaviour to be predatory and manipulative, and the Court of Criminal Appeal agreed that assessment was well founded.

Having weighed all factors, the Court concluded that no lesser sentence was warranted and should have been passed. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Error was established because the sentencing judge failed to give the appellant any utilitarian discount for his guilty plea, consistent with the obligation confirmed in Xiao v R that sentencing courts must account for the utilitarian value of a guilty plea when sentencing federal offenders.
  • Establishing sentencing error triggers a fresh exercise of the appellate court's own sentencing discretion, not a mechanical reduction from the original sentence; the Court of Criminal Appeal must independently weigh all relevant factors.
  • Under s 6(3) of the Criminal Appeal Act 1912 (NSW), the test for substituting a different sentence is a composite one: it is not enough that a lesser sentence would be "warranted in law." The court must also be satisfied that the lesser sentence "should have been passed," meaning the established error actually caused the sentence to be wrongly elevated.
  • Simpson AJA clarified, building on Davis v R and Thammavongsa v R, that any sentence within the available range is "warranted in law," so a Crown submission that "no lesser sentence is warranted in law" will almost always be incorrect. The more significant question is whether the lesser sentence should have been imposed.
  • Where an offender's cooperation with authorities is substantially captured by an early guilty plea, that cooperation will not necessarily attract a separate sentencing discount in addition to the utilitarian plea discount.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 474.17(1), 474.26(1), 474.27(1)
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)

Cases
- Aboud v R [2017] NSWCCA 140
- Aboud v R [2020] NSWSC 1648
- Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1
- Davis v R [2015] NSWCCA 90
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Holyoak v R (1995) 82 A Crim R 50
- Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70; (2018) 272 A Crim R 266
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
- Pratten v R (2017) 94 NSWLR 194; [2017] NSWCCA 42
- R v El Karhani (1990) 21 NSWLR 371
- R v Gay [2002] NSWCCA 6
- R v Paull (1990) 20 NSWLR 427
- R v Poynder [2007] NSWCCA 157; (2007) 171 A Crim R 544
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Sabra v R [2015] NSWCCA 38; (2015) 257 A Crim R 33
- Thammavongsa v R [2015] NSWCCA 107