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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: Court of Criminal Appeal
Date: 19 September 2022
Judge(s): Brereton JA; Garling J; Hamill J

Background

The appellant was sentenced in the District Court in October 2019 for eight sexual offences against his nephew, committed over a four-year period when the child was aged between seven and eleven. The offending spanned multiple countries and involved both state offences under the Crimes Act 1900 (NSW) and Commonwealth offences. The sentencing judge imposed a total effective sentence of nine years' imprisonment with a non-parole period of five years.

The appellant pleaded guilty to all charges. The agreed facts included a substantial history of grooming, including filming the child, correspondence of a sexualised nature, use of code words, and the showing of pornography to normalise the conduct. Counts 7 and 8 involved the use of a knife: the appellant directing the child to cut him, and then cutting the child himself.

The appellant sought an extension of time to appeal, the initial notice of intention to appeal having already lapsed. The Court addressed that application by considering the merits of the proposed grounds of appeal.

Legal Issues

  • Whether the sentencing judge erred in describing the count 4 offending in a way that improperly used breach of trust as an aggravating feature
  • Whether the sentencing judge erred in treating prior statements made during a search warrant execution as relevant to assessing remorse
  • Whether the sentencing judge's finding of "calculated premeditation" was open on the evidence, given the offending occurred during family visits
  • Whether the sentencing judge improperly took the impact on the child victim into account as a circumstance of aggravation
  • Whether the principle of totality was correctly applied across the state and Commonwealth sentences
  • Whether the 20% guilty plea discount was improperly reduced from 25%
  • Whether the sentencing judge applied the correct standard non-parole period for counts 2 and 3 under section 61M(2) of the Crimes Act 1900 (NSW)

Decision

Grounds 1 to 6: All rejected

Ground 1: The Court found that the sentencing judge's description of the count 4 offending was accurate and did not elevate criminality by treating breach of trust as an aggravating feature. The judge's remarks reflected the objective seriousness of the offending in context, and the history of similar conduct undermined the claim that the groping during the "aeroplane game" was spontaneous (at [39]).

Ground 2: The sentencing judge's reference to the appellant's minimising statements during the 2012 search warrant execution was not treated as a basis for aggravation but was used to contextualise the appellant's more recent expressions of remorse. The factual findings on remorse were open on the evidence (at [46]-[48]).

Ground 3: The finding of calculated premeditation was plainly open. The agreed facts established a sustained course of grooming through filming, coded language, bribes, and romantic correspondence designed to manipulate the child. The Court rejected the argument that individual incidents being opportunistic was inconsistent with premeditation over the course of conduct (at [53]-[55]).

Ground 4: The Court accepted this ground had some initial substance, given the strength of the language used. However, reading the judgment as a whole, the Court was not persuaded that the sentencing judge applied the victim's harm as a circumstance of aggravation beyond what would ordinarily result from such serious offending. The use of the word "devastating" was apt to describe the ordinary consequences of this category of offending (at [63]-[67]).

Ground 5: The sentences for separate and distinct acts of criminality were not required to be wholly concurrent. The totality principle was correctly applied. The judge's adjustments of commencement dates and accumulation reflected the separate occasions of offending and the overall criminality (at [83]-[85]).

Ground 6: The 20% discount for the guilty plea was within the sentencing judge's discretion. No evidence was placed before the sentencing court to explain the timing of the plea or to establish any early offer to plead guilty. On its face, the plea came very late, and the 20% discount was appropriate in the circumstances (at [95]-[96]).

Ground 7: Upheld, but no lesser sentence warranted

The Court found that the applicable standard non-parole period for counts 2 and 3 was five years, not eight years. Section 25AA(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), introduced by the 2018 Amendment Act, provided that the relevant SNPP is the one that applied at the time of the offence. The offences occurred in July and August 2007, when the SNPP under section 61M(2) was five years. Although the 2007 Amendment Act retrospectively increased the SNPP to eight years from 1 January 2008, section 25AA as the later provision prevailed, and it referred to the SNPP that existed at the time of the offence (at [108]-[110]).

The sentencing judge, acting on the submissions of both parties, proceeded on the erroneous basis that the SNPP was eight years. This was a material error. However, on resentencing, the Court assessed the total effective sentence as warranting at least as severe a sentence as that imposed below, and possibly more severe, given the extreme seriousness of the offending, the four-year pattern of abuse, and the egregious breach of trust (at [112], [118], [124]).

Orders Made

  • Time to seek leave to appeal extended
  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Section 25AA(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) refers to the standard non-parole period that existed at the time of the offence, not a period introduced by later retrospective amendment. For offences under section 61M(2) committed before 1 January 2008, the applicable SNPP was five years, not the eight years introduced by retrospective operation of the 2007 Amendment Act (at [108]-[110]).

  • Establishing error in the standard non-parole period applied by a sentencing judge does not automatically produce a lesser sentence on appeal. The Court of Criminal Appeal exercised its sentencing discretion afresh and, finding the original sentence was no more than warranted, dismissed the appeal (at [114], [124]).

  • A finding of calculated premeditation is not inconsistent with individual offences occurring during windows of opportunity such as family visits. Where evidence of sustained grooming, coded language, romantic correspondence, and rewards demonstrates a deliberate course of conduct, the court is entitled to reject a characterisation of the offending as opportunistic or spontaneous (at [53]-[55]).

  • Where no evidence is placed before the sentencing court to explain the timing of a guilty plea or to establish an early offer to plead, the sentencing judge is not in error for declining to award the maximum available discount. The utilitarian value of the plea and the extent of the discount remain within the sentencing judge's discretion (at [95]-[96]).

  • In sentencing for multiple counts involving a course of offending, uncharged but agreed conduct forming part of the background to the charged offences may legitimately inform the court's assessment of the offender's state of mind and the true character of the charged acts, without amounting to punishment for uncharged conduct (at [116]-[117]).

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 (Amendment) Act 1989 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 21A(2)(g), 25AA, 44, 53A, Pt 4 Div 1A, Sch 2 cl 57, Sch 2 cl 91
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Sch 1 cll [10], [16]
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- 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)
- Supreme Court Criminal Appeal Rules 2021 (NSW), r 3.5(5)

Cases
- Abousleiman v R [2021] NSWCCA 110
- 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
- Davis v R [2015] NSWCCA 90
- Doolan v R [2006] NSWCCA 29; (2006) 160 A Crim R 54
- Edwards v R [2009] NSWCCA 199
- Elsaj v R [2017] NSWCCA 124
- Glare v R [2015] NSWCCA 194
- Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55
- Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251; (2017) 270 A Crim R 33
- Greenyer v R [2016] NSWCCA 272
- GSH v R; R v GSH [2009] NSWCCA 214
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lee v R [2020] NSWCCA 244
- LN v R [2020] NSWCCA 131
- Martin v R [2014] NSWCCA 124
- Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497
- Mulato v R [2006] NSWCCA 282
- Nguyen v R [2019] NSWCCA 131
- Patel v R [2022] NSWCCA 93
- PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61
- R v Berg [2004] NSWCCA 300; [2004] 41 MVR 399
- R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535
- R v Cunningham [2006] NSWCCA 176
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Youkhana [2004] NSWCCA 412
- Ragg v R [2022] NSWCCA 150
- Regina v Oinonen [1999] NSWCCA 310
- RL v R [2015] NSWCCA 106
- RO v R [2019] NSWCCA 183
- RP v R [2013] NSWCCA 192; (2013) 234 A Crim R 272
- Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
- Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; [2005] HCA 58
- Tomlinson v R [2022] NSWCCA 16
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
- Xerri v R [2021] NSWCCA 268; (2021) 292 A Crim R 355
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4