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Court of Criminal Appeal 8 August 2022

SB v R

[2022] NSWCCA 164

Sexual offences
CRIME APPEAL AGAINST SENTENCE SENTENCE AFTER TRIAL MULTIPLE COUNTS AGGRAVATED INDECENT ASSAULT DELAY UNEXPLAINED

Citation: SB v R [2022] NSWCCA 164
Court: Court of Criminal Appeal, New South Wales
Date: 8 August 2022
Judges: Beech-Jones CJ at CL, Garling J, Wilson J (reasons delivered by Wilson J)

Background

The applicant was convicted after trial in the District Court at Newcastle on five counts arising from serious sexual offences committed against two young children, the daughters of his former de facto partner. The offending occurred between January 2006 and January 2007, when the children were aged between three and six years. Four counts involved sexual intercourse with a person under ten years contrary to s 66A of the Crimes Act 1900 (NSW), and one count involved aggravated indecent assault contrary to s 61M(2) of the same Act.

On 29 June 2018, the sentencing judge imposed an aggregate sentence of 17 years imprisonment with a non-parole period of 11 years, with indicative sentences of 10 years (NPP 6 years 6 months) for each of the four s 66A counts and 3 years (NPP 2 years) for the aggravated indecent assault count. The sentencing judge described the objective criminality as "very serious."

The applicant filed his application for leave to appeal on 22 February 2022, well outside the permissible filing period. No explanation was provided for the bulk of that significant delay. The Court nevertheless granted an extension of time and leave to appeal, before proceeding to dismiss the appeal on its merits.

  • Whether the application for leave to appeal, filed years out of time and largely without explanation, should be granted.
  • Whether the aggregate sentence of 17 years imprisonment with an 11-year non-parole period was manifestly excessive.
  • Whether the sentencing judge erred in the application of the totality principle in determining the appropriate level of concurrence and accumulation across the five counts.

Decision

The Court granted the extension of time and leave to appeal despite the significant unexplained delay, proceeding to consider the single ground of manifest excess on its merits. No separate reasoning was given explaining why the extension was granted in these circumstances, beyond the Court resolving the substantive ground against the applicant.

On manifest excess, the Court found no error in the aggregate sentence. The sentencing judge was found to have correctly identified the offending as representing very serious objective criminality. The applicant's criminal history across three states, his failure to comply with prior community-based orders, and the absence of genuine remorse were all legitimately weighed as aggravating factors. There was no demonstrated error in the approach to objective or subjective factors.

On the question of totality and accumulation, Wilson J applied the well-established principle that sentences should be at least partly cumulative where the criminality of one offence cannot be comprehended within the sentence for another. Because there were two separate victims, the offending against each child had to be reflected separately. Even among the three counts concerning the same victim during the same incident, some accumulation was necessary to reflect three distinct acts of intercourse and the additional harm caused by each. The Court was not persuaded that the application of the totality principle had produced an excessive result.

The Court concluded the aggregate sentence was stern but within the available range for offences of this gravity.

Orders Made

  • Extension of time to file an application for leave to appeal granted until 22 February 2022.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where multiple sexual offences are committed against two separate victims, the principle of totality does not permit full concurrence of sentences; the criminality against each victim must be separately reflected through at least partial accumulation.
  • Even within a single incident involving the same victim, distinct acts of sexual intercourse warrant some degree of accumulation to capture the additional harm caused by each separate act.
  • An aggregate sentence of 17 years (NPP 11 years) for four counts of sexual intercourse with a child under 10 and one count of aggravated indecent assault was found to be within the available sentencing range, though the Court characterised it as stern.
  • Significant unexplained delay in filing a notice of appeal does not necessarily preclude the Court from granting an extension of time, particularly where the Court proceeds to consider the substantive ground.
  • Under the totality principle, concurrence is more readily appropriate where offences form part of a single episode with common factors, but where offences are discrete or involve different victims, the sentence for one offence is unlikely to comprehend the criminality of the other.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 61M(2), 578A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 2

Cases:
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Byrne v R; Cahill v R [2021] NSWCCA 185
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Faehringer v R [2017] NSWCCA 248
- Gibbons (a pseudonym) v R [2019] NSWCCA 150
- GW v R [2018] NSWCCA 79
- Hughes v R [2018] NSWCCA 2
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Dent (Court of Criminal Appeal (NSW), 14 March 1991, unrep)
- R v Lau [2022] NSWCCA 131
- R v LS; R v MH [2020] NSWCCA 148
- Tindall v R [2019] NSWCCA 136
- TM v R [2018] NSWCCA 88
- TO v R [2017] NSWCCA 12
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
- Yaman v R [2020] NSWCCA 239