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Court of Criminal Appeal 29 November 2022

Towse v R

[2022] NSWCCA 252

Sexual offences
CRIME SENTENCING CHILD SEX OFFENCES PERSISTENT SEXUAL ABUSE OF A CHILD CRIMES ACT 1900 (NSW), S 66EA OFFENCES IN NSW AND QLD

Citation: Towse v R [2022] NSWCCA 252
Court: Court of Criminal Appeal, NSW
Date: 29 November 2022
Judges: Basten AJA (lead judgment); Davies J; McNaughton J

Background

The appellant, a de facto stepfather, pleaded guilty to a single count of maintaining an unlawful sexual relationship with a child under s 66EA(1) of the Crimes Act 1900 (NSW). The victim was his nine-year-old stepdaughter. The offending occurred across approximately seven days in April 2020 and involved incidents in both Queensland and New South Wales.

The five ingredient offences underlying the charge included indecent touching in Queensland, exposing his penis to the victim in a vehicle in New South Wales, inciting her to touch him, sexual touching, and digital penetration. The appellant was 40 years old at the time of the offending and was in a position of significant trust and responsibility over the child.

The District Court sentenced the appellant to eight years' imprisonment with a non-parole period of five years. That sentence incorporated a 35% discount for an early guilty plea and the disclosure of Queensland offending, which the sentencing judge described as having significant utilitarian value. The appellant sought leave to appeal on two grounds: error in assessing objective seriousness, and manifest excess.

  • Whether the sentencing judge erred in her assessment of the objective seriousness of the offending under s 66EA.
  • Whether the sentence of eight years' imprisonment (with a non-parole period of five years) was manifestly excessive when compared to sentences imposed in comparable cases.
  • How to approach resentencing, including the weight to be given to general deterrence for an intellectually unsophisticated offender and the prospects of rehabilitation.

Decision

On the first ground, the Court of Criminal Appeal rejected the challenge to the objective seriousness finding. The sentencing judge had placed the offending below the mid-range but above the low range, and the Court confirmed that such an assessment is a highly evaluative exercise that appellate courts will rarely disturb. The appellant's counsel conceded the significant difficulties involved in mounting this ground, and the Court found no error.

On the second ground, the Court allowed the appeal. After reviewing comparable cases including Burr v R, Eacott v R, Mills v R, and GP v R, the Court found that the starting point of 12 years and 4 months (before the 35% discount) was above the range supported by those authorities. The ingredient offences in this case, while serious, occurred over a short period of approximately one week, unlike many comparable cases involving prolonged abuse over years. That factual distinction justified a lower starting point.

In resentencing the appellant, the Court took into account his reasonable prospects of rehabilitation, supported by expert psychological evidence, and reduced the weight given to general deterrence on account of his intellectual unsophistication. The Court applied the same 35% discount that the original sentencing judge had assessed. The result was a lesser total sentence.

Davies J and McNaughton J each wrote briefly, with Davies J disagreeing with the majority's conclusion and finding the sentence was within the sound discretionary range available to the sentencing judge.

Orders Made

• The appeal is dismissed.

Key Takeaways

  • A challenge to a sentencing judge's assessment of objective seriousness faces a high threshold on appeal, as it is a pre-eminently evaluative exercise that appellate courts will rarely overturn absent identifiable error.
  • Under s 66EA of the Crimes Act 1900 (NSW), persistent sexual abuse of a child carries a maximum of life imprisonment and can encompass ingredient offences occurring partly outside New South Wales, provided at least one act occurred within the state.
  • The Court of Criminal Appeal confirmed that the duration and extent of the unlawful sexual relationship is a significant factor in calibrating the starting point for a s 66EA offence; a relationship spanning one week is materially different from cases involving years of abuse, even where the ingredient offences are of comparable seriousness.
  • General deterrence carries reduced weight in sentencing an offender whose intellectual unsophistication is established on the evidence.
  • In allowing a sentence appeal based on manifest excess, the Court of Criminal Appeal preserved the discount percentage assessed by the original sentencing judge rather than reassessing it afresh, applying it to a corrected starting point.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 66DA, 66DC, 66EA
- Criminal Code 1899 (Qld), s 210

Cases:
- Burr v R [2020] NSWCCA 282
- Eacott (a pseudonym) v R [2019] NSWCCA 158
- Mills v R [2017] NSWCCA 87
- GP (a pseudonym) v R [2021] NSWCCA 180
- R v RB [2022] NSWCCA 142
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen (2005) 228 CLR 357
- Kelly v The Queen (2004) 218 CLR 216
- Hili v The Queen (2010) 242 CLR 520
- Park v The Queen (2021) 395 ALR 193
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Mulato v R [2006] NSWCCA 282
- Magro v R [2020] NSWCCA 25
- Obeid v R (2017) 96 NSWLR 155
- Aslan v R [2014] NSWCCA 114
- R v Gavel [2014] NSWCCA 56
- Jeffree v R [2017] NSWCCA 72
- Byrne v R; Cahill v R [2021] NSWCCA 185