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11
Court of Criminal Appeal 6 July 2022

Ragg v R

[2022] NSWCCA 150

Sexual offencesAssault & violenceDomestic & family violence
CRIME SENTENCE APPEAL AGGREGATE SENTENCE OF 24 YEARS WITH NON PAROLE PERIOD ERROR CONCEDED NO LESSER SENTENCE WARRANTED IN LAW

Citation: Ragg v R [2022] NSWCCA 150
Court: NSW Court of Criminal Appeal
Date: 6 July 2022
Judges: Beech-Jones CJ at CL, N Adams J, Lonergan J

Background

The applicant pleaded guilty in the District Court to 13 offences arising from two days of extreme domestic violence against his long-term partner in October 2018. The couple had been in an intermittent relationship for approximately 12 years and had three children together. Over an 11-hour period on 30 October 2018, the applicant subjected the victim to brutal physical and sexual assaults, including an attempt to burn her, before abandoning her in a deserted area, where she was later found naked and covered in blood. The following day, he threatened her against reporting the matter to police.

On 18 May 2020, Judge King of the District Court imposed an aggregate sentence of 24 years' imprisonment with a non-parole period of 18 years. The sentencing judge made detailed findings regarding each of the 13 offences, including four counts of aggravated sexual assault.

The applicant sought leave to appeal on five grounds, primarily challenging how the sentencing judge assessed the objective seriousness of the four sexual assault counts, and also raising errors in the maximum penalty and standard non-parole period applied to two other offences.

  • Whether the sentencing judge erred in assessing the objective seriousness of each sexual assault count by reference to the facts and circumstances of the other sexual assault offences committed in the same episode.
  • Whether errors in applying the wrong maximum penalty (for intimidation) and the wrong standard non-parole period (for attempt to cause grievous bodily harm with intent) had the capacity to affect the aggregate sentence.
  • Whether an affidavit tendered by the applicant on resentence, expanding on evidence of his history of childhood sexual abuse, was admissible.
  • Whether any lesser aggregate sentence was warranted in law.

Decision

Objective seriousness and related offences

Beech-Jones CJ at CL (with Adams and Lonergan JJ agreeing) rejected the proposition that the facts of a related offence can never bear on the objective seriousness of a subject offence. The correct question is how those facts are relevant. Here, the facts of prior assaults in the same episode were legitimately relevant because they showed the victim's increasing vulnerability and the applicant's awareness of it. Equally, where the sentencing judge found that the applicant had formed an intention from the outset to commit all four sexual assaults, it was open to treat that intention as aggravating the earlier offences. An act of rape committed with a pre-formed intention to commit further, more brutal rapes is objectively worse than the same act committed without that intention.

Conceded errors: penalty and standard non-parole period

The applicant established that the sentencing judge applied a wrong maximum penalty to the intimidation offence and a wrong standard non-parole period to one of the grievous bodily harm offences. The Crown conceded both errors. The Court accepted that each error had the capacity to affect the aggregate sentence, thereby enlivening the obligation to resentence.

Fresh evidence on resentence

The applicant sought to tender an affidavit providing additional detail about his history of childhood sexual abuse, going beyond the sentencing judge's existing finding that he had experienced physical and sexual abuse which had normalised his offending behaviour. The Court rejected the affidavit. Evidence tendered on resentence on the "usual basis" ordinarily relates to events occurring after the original sentencing, not events predating it. Further, to the extent the affidavit sought to expand on the sentencing judge's existing favourable finding, the evidence was not relevant because neither party disputed that finding. Allowing the affidavit would amount to the applicant running a different case on appeal, which is impermissible.

No lesser sentence warranted

On resentence, the Court adopted the sentencing judge's findings and assessment of objective seriousness. Even setting aside any reliance on subsequent offences and considering only the preceding offences as informing the victim's vulnerability, the Court concluded that no lesser aggregate sentence was warranted. The offences represented an extreme case of sadistic sexual violence and torture.

Orders Made

  • The affidavit of the applicant affirmed 1 March 2022 was rejected.
  • Leave to appeal was granted.
  • The appeal was dismissed.

Key Takeaways

  • There is no blanket rule that the facts of a related offence are irrelevant to the objective seriousness of a subject offence. The Court of Criminal Appeal confirmed that relevance turns on how those facts bear on the subject offence, including what they reveal about the victim's vulnerability or the offender's intentions.
  • Where an offender is found to have formed a single intention to commit a series of sexual assaults from the outset, each earlier offence in that series may be assessed as more serious because it was committed with a pre-formed intention to commit further (and more brutal) offences.
  • Applying the wrong maximum penalty or the wrong standard non-parole period to an individual count can have the capacity to affect an aggregate sentence, thereby enlivening the appellate court's resentencing obligation even where an aggregate approach is used.
  • Evidence tendered on resentence on the "usual basis" is ordinarily confined to post-sentence events. Using such evidence to expand upon a pre-sentence finding already made in the applicant's favour, and undisputed by either party, is impermissible as it would amount to running a different case on appeal.
  • In dismissing the appeal despite finding sentencing error, the Court applied the principle that leave to appeal does not compel a lesser sentence where no lesser sentence is warranted in law.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Greentree v R [2018] NSWCCA 227
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- LN v R [2020] NSWCCA 131
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Ragg [2020] NSWDC 210 (sentence under appeal)
- RO v R [2019] NSWCCA 183
- Singh v R [2021] NSWCCA 96
- Tepania v R [2018] NSWCCA 247
- Veen (No 2) v The Queen (1988) 164 CLR 465; [1988] HCA 14