Citation: [2022] NSWCCA 200
Court: Court of Criminal Appeal (NSW)
Date: 21 December 2022
Judge(s): Harrison J (primary judgment), Fagan J and Yehia J (agreeing)
Background
The applicant (referred to as DH) pleaded guilty in the District Court to 17 child sexual offences committed between 1990 and 2018 against nine victims, with 10 additional offences taken into account on Form 1. Two of the victims were DH's biological daughters. A third was his cousin. The remaining six victims were friends of his daughters, most of whom were assaulted during sleepovers at the family home.
The offences ranged from indecent assault of children under 16 to sexual intercourse with children under 10. The victims were aged between approximately 6 and 13 at the time of the offending. The sentencing judge (Huggett DCJ) imposed an aggregate sentence of 30 years' imprisonment with a non-parole period of 20 years.
DH appealed to the Court of Criminal Appeal, arguing that the sentencing judge erred in assessing the objective seriousness of the offences and that the overall sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in her assessment of the objective seriousness of the individual counts
- Whether the sentencing judge was required to indicate where on the scale of seriousness each offence fell (relevant to offences carrying a standard non-parole period, or "SNPP")
- Whether the aggregate sentence of 30 years (with a 20-year non-parole period) was manifestly excessive
Decision
The Court dismissed the appeal on all grounds.
On the question of objective seriousness, Harrison J confirmed that a sentencing judge is not obliged to indicate where on the scale of seriousness each offence falls when dealing with an offence carrying a standard non-parole period. While it would not be an error to adopt such an approach, the failure to do so does not constitute error. This is consistent with the High Court's decision in Muldrock v The Queen, which established that the SNPP is a guidepost, not a mandatory starting point. The sentencing judge's remarks were described as "both orthodox and correct."
On the manifest excess ground, the Court applied the principles from Obeid v R: appellate intervention is not justified simply because the sentence differs markedly from sentences imposed in other cases. Intervention is only warranted where the difference is so great that it compels a conclusion that there must have been some misapplication of principle, or where the sentence is so far outside the range in comparable cases that error must have occurred.
The Court found the nature of DH's offending, the age of the victims, the circumstances in which the offending occurred (principally the family home, during sleepovers), the breach of trust involved, and the 28-year duration of the offending all combined to produce conduct of a "most reprehensible kind." The aggregate sentence was held not to be manifestly excessive. DH received only modest discounts (5% to 10%) for his guilty pleas, reflecting that he did not enter them at the first available opportunity.
Orders Made
- Leave to appeal granted
- Appeal dismissed
- The aggregate sentence of 30 years' imprisonment with a non-parole period of 20 years was confirmed
Key Takeaways
-
Consistent with Muldrock v The Queen, a sentencing judge is not required to place each offence on a scale of objective seriousness when sentencing for offences carrying a standard non-parole period. The SNPP operates as a guidepost rather than a rigid framework, and an appeal ground resting solely on the absence of such an indication was found unlikely to succeed.
-
In dismissing the manifest excess ground, the Court of Criminal Appeal reiterated that a disparity between an aggregate sentence and sentences imposed in other cases will not justify appellate intervention unless it is so significant that it points to an underlying error of principle, even where that error is not apparent on the face of the reasons.
-
An accumulation of aggravating features in child sexual offence cases, including multiple victims, very young ages, abuse of a position of trust as a biological father, a long period of offending, and grooming behaviour involving threats and normalisation, can combine to sustain a very substantial aggregate sentence.
-
Where guilty pleas are not entered at the earliest available opportunity, the utilitarian discount may be limited to as little as 5% to 10% depending on the count. The reduced discounts in this case had a significant impact on the lengthy aggregate sentence imposed by the District Court.
-
The Court of Criminal Appeal endorsed the sentencing judge's approach of carefully setting individual indicative sentences and then structuring accumulation and concurrency to arrive at the aggregate term in a multi-count, multi-victim matter, confirming the importance of addressing both individual indicative sentences and the cumulative effect of the offending when constructing an aggregate sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 54A, 54B
Cases:
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247
- Ryan v R [2019] NSWCCA 200
- Lyons v R [2017] NSWCCA 204
- McIntosh v R [2015] NSWCCA 184
- R v Cattell [2019] NSWCCA 297
- Sivell v R [2009] NSWCCA 286
- BR v R [2021] NSWCCA 279
- R v Dodd (1991) 57 A Crim R 349
- ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132
- Sponberg v R [2017] NSWCCA 120
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
- R v JJ [2019] NSWCCA 148
- R v Dawson [2022] NSWSC 1632