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Court of Criminal Appeal 3 June 2022

Young (a pseudonym) v R

[2022] NSWCCA 111

Sexual offences
SENTENCING APPEAL AGAINST SENTENCE MANIFEST EXCESS DIFFICULT SENTENCING EXERCISE BUGMY BACKGROUND DELAY OF 16

Citation: Young (a pseudonym) v R [2022] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 3 June 2022
Judges: Bell CJ, Button J, N Adams J (all agreeing in the result; reasons delivered by N Adams J)

Background

The appellant (referred to by pseudonym) was 34 years old at the time of the appeal. He had been charged in July 2020 with historical child sexual assault offences committed in 2003 to 2004, when he was aged 14 to 16 years and his victim, his niece, was aged 9 to 11 years. Both children were living in the same family home, where they were subject to serious physical and sexual abuse perpetrated by the family patriarch.

The appellant pleaded guilty in the Local Court to two counts of sexual intercourse with a person aged between 10 and 16 years (s 66C(1) of the Crimes Act 1900 (NSW)) and one count of attempted sexual intercourse with a person aged between 10 and 16 years (s 66D). Three further s 66C(1) offences were taken into account on Form 1. The maximum penalty for each offence at the relevant time was 8 years imprisonment.

In the District Court, Judge Haesler SC imposed an aggregate sentence of 3 years imprisonment with a non-parole period of 18 months. The appellant appealed to the Court of Criminal Appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the aggregate sentence of 3 years imprisonment was manifestly excessive in all the circumstances.
  • Whether the sentencing judge gave adequate weight to the 16 to 17 year delay between the offending and the laying of charges, including the loss of the opportunity to be dealt with as a child and the loss of the opportunity to be dealt with under the sentencing regime that existed prior to 2018 amendments.
  • Whether the sentencing judge gave sufficient weight to the appellant's age at the time of the offences and to what the Court described as an "overwhelming" subjective case, including a serious Bugmy-type background of deprivation, abuse, and disadvantage.
  • Whether, despite the above mitigating factors, the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was crossed, requiring a custodial sentence.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that the sentence was manifestly excessive in the exceptional circumstances of the case. N Adams J, with whom Bell CJ and Button J agreed, identified several compounding features that the original sentence did not adequately reflect.

The first was the extreme delay of 16 to 17 years before charges were laid. Because of that delay, the appellant lost the opportunity to be dealt with in the Children's Court, which would have allowed the sentencing court to give primary weight to his prospects of rehabilitation as a young person. He also lost the opportunity to be sentenced under the pre-2018 sentencing regime. These were not matters of the appellant's making, and the Court found they significantly reduced the weight that would otherwise attach to general deterrence.

The second was the appellant's age at the time of the offending (14 to 16 years) and the gravity of his background. The Court applied the principles from Bugmy v The Queen (2013) 249 CLR 571, under which the moral culpability of an offender may be reduced by a background of serious childhood deprivation and abuse. The appellant had himself been the victim of sexual and physical abuse in the same household, had been evicted and made homeless by his father at around age 15 to 16, and had subsequently struggled with mental health issues and drug dependence. The Court characterised the subjective case as "overwhelming."

Despite these mitigating factors, the Court accepted that the objective seriousness of the offending meant the threshold for a custodial sentence under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was crossed. A non-custodial option was not appropriate. The Court resentenced the appellant to an aggregate term of 2 years imprisonment with a non-parole period of 16 months, applying a 25% discount for the early guilty pleas, indicative sentences of 1 year and 3 months for each s 66C(1) count, and 1 year and 2 months for the s 66D count.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Aggregate sentence imposed by Judge Haesler SC on 20 July 2021 quashed.
  • In substitution, an aggregate sentence of 2 years imprisonment imposed, commencing 4 February 2021 and expiring 3 February 2023, with an aggregate non-parole period of 16 months expiring 3 June 2022.

Key Takeaways

  • Where an offender is sentenced as an adult for offences committed as a child, and lengthy delay was responsible for the loss of the opportunity to be dealt with in the Children's Court, the sentencing court must give that delay substantial weight as a mitigating factor going to general deterrence and the purposes of sentencing.
  • Bugmy principles apply with particular force where an offender's background of serious childhood abuse, deprivation, and disadvantage directly contextualises the offending, reducing moral culpability even for grave sexual offences.
  • The Court of Criminal Appeal confirmed that objective seriousness may nonetheless require a custodial sentence under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), even where subjective circumstances are exceptionally compelling.
  • In resentencing, the Court applied the totality principle to account for a concurrent Local Court sentence, found special circumstances justifying a departure from the standard non-parole period ratio, and applied the same 25% guilty plea discount as the sentencing judge.
  • A delay of 16 to 17 years before charges are laid, through no fault of the offender, is a recognised source of injustice in the sentencing process, particularly where legislative changes in the intervening period have altered the available sentencing options.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(1), 66D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 25AA(1), 32, 44(2B), 53A, 67(1)(b)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 4, 16, 17
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- AB v R [2022] NSWCCA 3
- BM v R [2019] NSWCCA 223
- Brierley v R [2022] NSWCCA 26
- Conte v R [2018] NSWCCA 209
- Griffin v R [2018] NSWCCA 259
- JA v R [2021] NSWCCA 10
- Kliendienst v R [2020] NSWCCA 98
- KT v R [2008] NSWCCA
- MPB v R [2013] NSWCCA 213; 234 A Crim R 576
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Paul Campbell v R [2018] NSWCCA 87
- R v AA [2017] NSWCCA 84
- R v Nelson [2016] NSWCCA 130
- SW v R [2019] NSWCCA 194
- Zreika v R [2012] NSWCCA 44