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10
Court of Criminal Appeal 27 May 2022

PC v R

[2022] NSWCCA 107

Also reported as (2022) 108 NSWLR 181
Sexual offences
CHILD SEXUAL ASSAULT WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: PC v R [2022] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 27 May 2022
Judge(s): Bell CJ, Kirk JA, Price J

Background

The applicant, the father of the complainant, pleaded guilty in the District Court at Goulburn to a series of child sexual offences committed against his daughter when she was aged between approximately 8 and 12 years old. The offences included two counts of sexual intercourse with a child under 10 years, four counts of sexual intercourse with a child aged 10 to 14 years in circumstances of aggravation (under s 66C(2) of the Crimes Act 1900 (NSW)), and one count of indecent assault. Seven further charges were taken into account on a Form 1. The sentencing judge imposed an aggregate term of 16 years' imprisonment with a non-parole period of 9 years, applying a 25% discount for the guilty pleas.

The applicant sought leave to appeal that sentence on two grounds. First, he argued that the sentencing judge impermissibly double-counted by treating breach of trust as an aggravating factor in relation to offences under s 66C(2), where the victim being "under the authority" of the offender was already an element of those offences. Second, he contended the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating abuse of trust as an aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for offences under s 66C(2), where the victim being under the authority of the offender was already an element of those offences.
  • Whether there is a meaningful distinction between "abuse of authority" and "abuse of trust" in the context of sentencing for child sexual assault by a parent.
  • Whether the aggregate sentence of 16 years was manifestly excessive, having regard to the objective seriousness of the offending, the subjective case, and the need for general deterrence.

Decision

On the double-counting ground, the Court first noted a procedural obstacle: the applicant's counsel had not raised the double-counting argument before the sentencing judge. Because the Court of Criminal Appeal is a court of error rather than a forum for reformulating arguments, the applicant was required to demonstrate a miscarriage of justice or serious injustice before the Court would entertain the ground.

The Court then drew an important conceptual distinction. There is a difference between an offender being in a position of authority and that offender abusing that position. While a father who sexually assaults his child will inevitably have abused his position of authority, this does not make "abuse of authority" a strict element of the s 66C(2) offence. Separately, the Court noted that "abuse of authority" and "abuse of trust" are distinct concepts, and that the degree of trust between a father and child can vary depending on particular circumstances. Caution is required to avoid punishing an offender twice, but those concepts are not automatically co-extensive with the elements of the charged offence.

Critically, the sentencing judge had identified specific circumstances constituting a breach of trust in this case, going beyond mere abuse of authority. Because the judge clearly explained the particular basis for the finding of aggravation, no error was demonstrated and the first ground failed.

On manifest excess, the applicant did not challenge the judge's characterisation of the objective gravity of each offence, did not refer to comparable cases, and did not point to indicative sentences suggesting error. The Court observed that the judge had already reduced the sentence by reference to the applicant's subjective circumstances, found special circumstances, and applied the totality principle. The Court further noted that the sentencing judge had not expressly addressed general deterrence, but emphasised that this factor carries significant weight in child sexual assault cases, particularly where the offender holds a position of trust. The aggregate sentence was found to appropriately reflect the totality of the criminality and was not manifestly excessive.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A distinction exists between an offender occupying a position of authority and that offender abusing that position. In the context of a father sexually assaulting his child, abuse of authority is not a strict element of an offence under s 66C(2) of the Crimes Act 1900 (NSW), even though the victim being "under the authority" of the offender is an element of that offence.
  • "Abuse of authority" and "abuse of trust" are distinct concepts for sentencing purposes. The degree of trust between a parent and child can vary on the facts, and a sentencing court that identifies particular circumstances supporting a finding of breach of trust goes beyond what is inherent in the offence itself, thereby avoiding impermissible double-counting.
  • Where a sentencing judge clearly articulates the specific factual basis for finding an aggravating factor, and that basis extends beyond the elements of the charged offence, no error of double-counting arises.
  • The Court of Criminal Appeal reiterated that it is a court of error, not a forum for reformulating arguments not put below. An applicant raising a new ground on appeal must establish a miscarriage of justice or serious injustice.
  • General deterrence carries particular weight in sentencing for child sexual assault, especially where an offender occupies a position of trust, and cannot be overlooked when assessing a claim of manifest excess.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(2)(k)

Cases
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Beavis v R [2018] NSWCCA 248
- Franklin v R [2016] NSWCCA 319
- Griffin v R [2018] NSWCCA 259
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- MRW v R [2011] NSWCCA 260
- Parker v R [2021] NSWCCA 175
- Pym v R [2014] NSWCCA 182
- R v BJW (2000) 112 A Crim R 1; [2000] NSWCCA 60
- Vaiusu v R [2017] NSWCCA 71
- Yang v R (2012) 219 A Crim R 550; [2012] NSWCCA 49
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44