AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 17 June 2022

R v Stefanac

[2022] NSWCCA 129

Sexual offences
CRIMINAL LAW SENTENCE PROSECUTION APPEAL AGAINST INADEQUACY SEXUAL OFFENDING AGAINST TWO CHILDREN PAROLE PERIOD PAROLE PERIOD

Citation: R v Stefanac [2022] NSWCCA 129
Court: NSW Court of Criminal Appeal
Date: 17 June 2022
Judges: Beech-Jones CJ at CL, Hamill J, N Adams J

Background

The respondent pleaded guilty in the District Court to 12 serious sexual offences committed against two 13-year-old girls (referred to by pseudonyms in the judgment) between late April and mid-July 2020. He was 44 years old at the time. The offending occurred across three discrete periods, and the court also took into account a further 18 related offences. A 25% guilty plea discount was applied to individual indicative sentences before an aggregate sentence was constructed.

On 22 September 2021, Judge English sentenced the respondent to an aggregate term of 8.5 years' imprisonment with a non-parole period of 5 years. The Director of Public Prosecutions appealed, contending that the aggregate sentence failed to reflect the full extent of the respondent's criminality, particularly given the offending involved two separate victims across separate time periods.

The Director did not submit that the individual indicative sentences were themselves manifestly inadequate, though it characterised them as lenient. The core complaint was that the degree of notional accumulation applied when constructing the aggregate sentence was insufficient.

  • Whether the sentencing judge erred in applying the totality principle when constructing the aggregate sentence, in circumstances where the offending involved two victims and three discrete periods
  • Whether the aggregate sentence was manifestly inadequate
  • Whether the sentencing judge failed to properly take into account the standard non-parole period applicable to 10 of the offences under s 66C(2) of the Crimes Act 1900 (NSW)

Decision

Ground 3: Standard non-parole period (unanimous)

All three judges agreed that ground 3 was not established. Reading the remarks on sentence fairly and in context, the sentencing judge's use of the phrase "depart from imposing the standard non-parole period" did not, without more, demonstrate a "two-tiered" approach or an impermissible departure from the standard non-parole period. The language used was insufficient to justify an inference of legal error in the treatment of the standard non-parole period.

Grounds 1 and 2: Totality and manifest inadequacy (majority)

By majority (N Adams J, with Beech-Jones CJ at CL agreeing), the Court held that the aggregate sentence did not adequately reflect the criminality involved. The indicative sentences totalled 56 years and 6 months for the 10 offences against the first victim and 14 years and 6 months for the 2 offences against the second victim. While significant concurrence was appropriate for some offences, the majority found that the aggregate sentence required additional accumulation to recognise the three discrete periods of offending and to vindicate the harm done to each victim separately.

The majority also confirmed that sentencing courts no longer require evidence of the profound and deleterious effects of this type of offending in order to take such harm into account. The aggregate sentence, in failing to denounce serious criminal conduct against two victims across separate time frames, was unreasonable and plainly unjust, and the Court declined to exercise its residual discretion to dismiss the Crown appeal.

Hamill J (dissenting on grounds 1 and 2)

Hamill J would have dismissed the appeal in its entirety. His Honour observed that the relationship between the severity of a sentence and its length is not linear, and that the degree of notional accumulation within an aggregate sentence falls within the sentencing judge's broad discretion. Taking into account the seriousness of the offending, the respondent's background, his lack of criminal history, and the particularly onerous conditions of custody he had experienced and would continue to experience, Hamill J considered the aggregate sentence was within the available range, even if it might be regarded as lenient.

Orders Made

  • Crown appeal allowed
  • The aggregate sentence imposed by Judge English on 22 September 2021 is quashed
  • In lieu thereof, the respondent is sentenced to an aggregate term of 12 years' imprisonment, commencing 21 July 2020 and expiring 20 July 2032, with an aggregate non-parole period of 7 years expiring 20 July 2027

Key Takeaways

  • Where an offender commits serious sexual offending against multiple victims across discrete time periods, an aggregate sentence must reflect a meaningful degree of additional accumulation for each separate victim and time frame, not merely the totality of the offences against the primary victim.
  • A sentencing judge's use of the word "depart" or "departure" in relation to the standard non-parole period does not, by itself and without more context, establish that the judge applied an incorrect two-tiered approach to calculating the non-parole period.
  • Sentencing courts are not required to have evidence of the specific deleterious effects of child sexual offending on victims before treating such harm as a relevant sentencing consideration.
  • In dismissing the residual discretion to decline interference on a Crown appeal, the majority held that an aggregate sentence that fails to denounce serious criminal conduct against separate victims is unreasonable and plainly unjust, making it appropriate for the appellate court to re-sentence.
  • The Court of Criminal Appeal's majority confirmed, applying Pearce v The Queen and Cahyadi v Regina, that the totality principle does not operate to collapse the criminal responsibility for offending against discrete victims into a sentence that does not adequately vindicate each victim's individual harm.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A, 54A, 54B, 54C
- Crimes Act 1900 (NSW), ss 66C, 66DB, 578A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Bustescu v R [2020] NSWCCA 113
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
- CMB v The Attorney-General for New South Wales [2015] HCA 9
- DBW v R [2007] NSWCCA 236
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- GP v R [2016] NSWCCA 150
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hunter v R [2020] NSWCCA 285
- Mbele v R [2021] NSWCCA 182
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
- R v Gavel [2014] NSWCCA 56
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v McKenzie [2022] NSWCCA 119