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5
Court of Criminal Appeal 19 September 2022

GL v R

[2022] NSWCCA 202

Sexual offences
CRIMINAL LAW SENTENCE APPEAL MULTIPLE GROUNDS OF APPEAL RAISED LITTLE MERIT USE OF KNIFE FOR MUTUAL CUTTING AGGRAVATING CIRCUMSTANCES

Citation: GL v R [2022] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 19 September 2022
Judges: Brereton JA, Garling J, Hamill J (Hamill J delivered the leading judgment; Brereton JA and Garling J agreed)

Background

The appellant was sentenced in the District Court on 25 October 2019 following guilty pleas to multiple child sexual offences against a young nephew committed over a four-year period across two jurisdictions. The state offences occurred in New South Wales in 2007 and consisted of acts of indecency and indecent assault against a child under ten. The Commonwealth offences occurred in the United States between 2009 and 2010 and included sexual intercourse and acts of indecency with a person under 16 while outside Australia.

The sentencing judge imposed a fixed aggregate term of 2.5 years for the state offences and a cumulative aggregate term of 6.5 years (with a 2.5-year non-parole period) for the Commonwealth offences. A 20% discount for the guilty plea was applied, producing a total effective sentence of 9 years with a non-parole period of 5 years.

The appellant raised seven grounds of appeal, challenging findings on aggravation, premeditation, remorse, victim impact, totality, the guilty plea discount, and the applicable standard non-parole period ("SNPP"). The Court of Criminal Appeal dismissed the appeal.

  • Whether the sentencing judge erred by treating the circumstances of count 4 (groping during an "aeroplane game") as an aggravating factor rather than a matter going to objective seriousness
  • Whether the sentencing judge improperly used the appellant's false statements to police in 2012 as evidence of a lack of remorse
  • Whether the finding of calculated premeditation was supported by the evidence
  • Whether the sentencing judge gave unwarranted weight to victim impact in assessing the objective seriousness of count 3
  • Whether the totality principle was correctly applied given the appellant's characterisation of the offending as three discrete episodes
  • Whether the reduction of the guilty plea discount from 25% to 20% involved irrelevant considerations
  • Whether the sentencing judge applied the wrong SNPP to counts 2 and 3 under the complex legislative history of s 61M of the Crimes Act 1900 (NSW)

Decision

Grounds 1 to 3: Aggravation, remorse, and premeditation. The Court found no error in relation to the aeroplane game incident: the judge had not elevated the means of offending into a separate aggravating feature but had properly used it to assess objective seriousness. The false statements made to police in 2012 were relevantly considered when evaluating the appellant's claimed remorse in 2019. The substantial evidence of grooming provided a sufficient basis for the judge's finding that the offending was not spontaneous but was premeditated to some degree.

Ground 4: Victim impact. Reading the sentencing judgment as a whole, the judge had not attributed extraordinary or unusual harm to the victim. The description of the impacts as "devastating" was apt to describe the ordinary consequences of this type of offending and did not, by itself, demonstrate error in the assessment of objective seriousness.

Ground 5: Totality. The offending spanned four years across multiple visits and jurisdictions, and the evidence of grooming and uncharged conduct was significant. None of the indicative sentences sufficiently captured the criminality of the other charges, and the approach taken to partial concurrency was consistent with authority and within the sentencing judge's discretion.

Ground 6: Guilty plea discount. No evidence was placed before the Court of Criminal Appeal to explain the course of plea negotiations, the timing of the prosecution's withdrawal of the most serious charge, or when the appellant first signalled willingness to plead. The plea was objectively late, and a 20% discount was within the sentencing judge's discretion.

Ground 7: Standard non-parole period. This ground was raised for the first time during oral submissions on appeal. The Court granted leave to rely on it and found that material error had occurred. Counts 2 and 3 were offences against s 61M of the Crimes Act committed in 2007, when the applicable SNPP was 5 years. A 2007 amendment retrospectively increased the SNPP to 8 years, but s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW), introduced in 2018, requires that the SNPP for child sexual offences be the one applicable at the time of the offence, not at sentencing. The Court resolved the tension between s 25AA and the transitional provisions in Schedule 2, clause 91, in favour of s 25AA as the later enactment and on the principle that penal statutes should be construed in favour of the liberty of the subject. Accordingly, the correct SNPP for counts 2 and 3 was 5 years, not 8. Despite establishing this error, the Court concluded that no lesser sentence was warranted on the facts and dismissed the appeal.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that evidence of grooming and uncharged sexual conduct is relevant to whether offending was premeditated, and a finding of premeditation does not require proof that each individual act was specifically planned in advance.
  • A sentencing judge's use of the word "devastating" to describe the impact of child sexual offences does not automatically establish error in assessing objective seriousness, provided the judge has not attributed harm beyond what ordinarily results from such offending.
  • Where an appellant seeks to challenge a reduction in the guilty plea discount on the basis of matters beyond their control, the absence of evidence before the appellate court explaining the course of plea negotiations will leave a late objective plea subject to the sentencing judge's discretion.
  • Under s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW), the applicable SNPP for a child sexual offence is the SNPP that existed at the time of the offence. Where that provision conflicts with transitional clauses introduced at the same time, s 25AA prevails as the later-enacted substantive provision, and the principle that penal statutes should favour the liberty of the subject reinforces that construction.
  • Error in identifying the applicable SNPP does not automatically produce a lesser sentence. Even where such error is established and leave is granted to raise it on appeal, the Court may still dismiss the appeal if the overall sentence is otherwise appropriate and no lesser sentence is warranted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61KD, 61M(2), 61O
- Crimes Act 1914 (Cth), ss 50BA(1), 50BC(1)(a), 50BC(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 21A(2)(g), 25AA, 44, 53A, Pt 4 Div 1A, Sch 2 cll 57, 91
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Sch 1 cll [10], [16]
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW), Sch 1 cl [7], Sch 3 cll [6], [10]
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Supreme Court Criminal Appeal Rules 2021 (NSW), r 3.5(5)

Cases
- Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18
- Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Doolan v R [2006] NSWCCA 29; (2006) 160 A Crim R 54
- Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55
- Graj