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Court of Criminal Appeal 24 June 2022

R v Lau

[2022] NSWCCA 131

Sexual offences
CRIMINAL LAW OFFENCES SENTENCE APPEAL SOME OF THE OFFENDING PLANNED PAROLE PERIOD OF 6 YEARS AND 6 MONTHS

Citation: R v Lau [2022] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 24 June 2022
Judge(s): Adamson J, Bellew J (principal judgment), Lonergan J

Background

The respondent pleaded guilty in the District Court to a large number of sexual and related offences against eight child victims, ranging in age from approximately 7 to 14 years. The victims included two young girls whose parents were friends of the respondent and his wife, and six boys who were school friends of his sons. The offending spanned multiple episodes and included sexual intercourse with children under 10 and under 16, indecent assault, detaining persons for sexual gratification, breaking and entering to commit indecent assault, and possessing child abuse material. Some of the offending was planned; much of it was predatory in character and involved a serious breach of trust.

The sentencing judge in the District Court imposed an aggregate sentence of 10 years' imprisonment with a non-parole period of 6 years and 6 months. The Director of Public Prosecutions appealed on the single ground that the sentence was manifestly inadequate.

The Crown relied on latent error, meaning it did not point to specific identifiable mistakes in the sentencing reasons as a precondition to the appeal, but instead argued that the sentence itself revealed the error.

  • Whether the aggregate sentence of 10 years was manifestly inadequate for the volume and seriousness of the offending.
  • Whether the sentencing judge's reasons adequately exposed the reasoning process for the objective seriousness findings.
  • Whether the sentencing judge correctly identified and applied aggravating circumstances, including whether one episode of offending occurred in a victim's home.
  • Whether the approach taken to offences accompanied by a Form 1 (additional matters taken into account at sentencing) was consistent with established authority.
  • Whether the finding of special circumstances (which adjusts the statutory ratio between total sentence and non-parole period) was properly justified.
  • Whether the residual discretion not to intervene in a Crown appeal should be exercised.

Decision

Bellew J, with Adamson and Lonergan JJ agreeing, allowed the Crown appeal. Although the Crown formally relied on latent error, the Court found it necessary to examine the sentencing judge's reasons in some detail, and identified multiple errors and deficiencies in the process.

The reasons were found to be inadequate in several respects. The summary of agreed facts was not accurate and omitted material matters bearing on objective seriousness. The sentencing judge made bare recitations of facts without proper analysis, and expressed seriousness findings by reference to a notional range without adequately identifying the features driving those findings. In some instances there was a visible displacement between the seriousness finding and the indicative sentence imposed for a particular offence.

The Court found that the assessment of aggravating circumstances lacked specificity. The sentencing judge's treatment of the fact that one episode of offending occurred in a victim's home was unclear and appeared erroneous. The approach to Form 1 offences did not align with established authority. The finding of special circumstances appeared to conflate matters relevant to the general subjective case with the distinct question of whether the statutory ratio between head sentence and non-parole period warranted adjustment.

The Court held that the sentence was manifestly inadequate, failing to reflect fundamental purposes of sentencing including general deterrence, denunciation, and community protection. The multiplicity of offences, the number and ages of the victims, the planning involved in some instances, the sustained predatory conduct, and the gross breach of trust all required a substantially heavier sentence. There was no basis to exercise the residual discretion against intervention; the inadequacy was so marked that intervention was necessary to maintain public confidence in the criminal justice system. The Court re-sentenced the respondent to an aggregate term of 15 years' imprisonment with a non-parole period of 11 years and 3 months.

Orders Made

  • The Crown appeal against sentence is allowed.
  • The aggregate sentence imposed in the District Court is quashed.
  • In lieu thereof, the respondent is sentenced to an aggregate term of 15 years' imprisonment, commencing 6 November 2019 and expiring 5 November 2034.
  • A non-parole period of 11 years and 3 months is specified, commencing 6 November 2019 and expiring 5 February 2031.

Key Takeaways

  • A sentencing judge's summary of agreed facts must be accurate and complete; omissions of material facts bearing on objective seriousness will undermine the validity of the sentencing exercise.
  • Expressing findings of objective seriousness solely by reference to where offending falls on a notional range, without fully identifying the features driving that assessment, does not meet the requirements of adequate sentencing reasons.
  • Brevity of individual instances of offending is of limited significance when assessing objective seriousness, particularly where offending is sustained and predatory in character.
  • Special circumstances (justifying a departure from the statutory ratio between head sentence and non-parole period) must be identified distinctly from the general subjective case; confusing the two represents an error in principle.
  • Where the inadequacy of a sentence is so marked as to undermine public confidence in the criminal justice system, the Court of Criminal Appeal will intervene notwithstanding the general caution applied to Crown appeals, and will decline to exercise the residual discretion against re-sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 3A, 21A, 33
- Criminal Appeal Act 1912 (NSW)

Cases:
- Alesbhi v R; Esbhi v R [2018] NSWCCA 30
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Butters v R [2010] NSWCCA 1
- CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Collier v R [2012] NSWCCA 213
- Corby v R [2010] NSWCCA 146
- Cowling v R [2015] NSWCCA 213
- Cranssen v The Queen (1936) 55 CLR 509; [1936] HCA 42
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- EG v R [2015] NSWCCA 21
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- JM v R [2014] NSWCCA 297
- Jonson v R [2016] NSWCCA 286
- Lai v R [2021] NSWCCA 217
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Cage [2006] NSWCCA 304
- R v Fidow [2004] NSWCCA 172
- R v Matu [2019] NSWCCA 23
- R v RMW [2016] NSWCCA 211
- R v Tuuta [2014] NSWCCA 40
- R v Wheeler [2000] NSWCCA 34
- Taylor v R [2018] NSWCCA 255
- Yeung v R [2018] NSWCCA 52