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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
Date: 29 November 2022
Judge(s): Basten AJA at [1]; Davies J at [57]; McNaughton J at [58]

Background

The applicant, a 40-year-old de facto stepfather, was sentenced in the District Court to 8 years imprisonment with a non-parole period of 5 years after pleading guilty to a single count of maintaining an unlawful sexual relationship with a child under section 66EA(1) of the Crimes Act 1900 (NSW). The victim was his nine-year-old stepdaughter. The offending occurred over approximately seven days in April 2020, spanning conduct in both Queensland and New South Wales.

The five particularised unlawful sexual acts included sexual touching on multiple occasions and, most seriously, inserting a finger inside the victim's labia majora, which constituted sexual intercourse with a child under 10 years contrary to section 66A(1). The sentencing judge applied a 35 percent discount for an early guilty plea and the applicant's disclosure of earlier Queensland offending, producing a starting point of 12 years and 4 months.

The applicant sought leave to appeal on two grounds: that the sentencing judge erred in assessing the objective seriousness of the offending, and that the sentence imposed was manifestly excessive.

Legal Issues

  • Whether the sentencing judge erred in her assessment of the objective seriousness of the offending under section 66EA(1)
  • Whether the sentence of 8 years imprisonment with a 5-year non-parole period was manifestly excessive
  • Whether the applicant's intellectual unsophistication should have tempered the weight given to general deterrence
  • How the brief duration of offending (seven days) should be assessed within the range for maintaining an unlawful sexual relationship

Decision

Ground 1: Objective Seriousness

The Court unanimously rejected the first ground. The sentencing judge's finding that the offending fell below the mid-range but above the lowest range was an evaluative judgment entitled to significant weight, and no appellable error was established (at [12], [34]). The Court noted several competing considerations: the offending involved a nine-year-old victim, a serious breach of trust by the applicant in his role as stepfather, and conduct including an act of sexual intercourse. However, there was no penile penetration, no violence or physical threats, and, critically, the conduct occurred over only seven days. The Court described this duration as placing the offending at the very lowest end of a range of conduct capable of constituting maintaining an unlawful sexual relationship (at [30]). The majority ultimately found, on resentencing, that the objective seriousness was well below the mid-range for this class of offence (at [53]).

Ground 2: Manifest Excess (Majority)

By majority, Basten AJA and Davies J allowed the appeal on the ground of manifest excess. Comparing the offending with cases such as Eacott, Burr, Mills, and GP, the majority found the seven-day duration of offending could not bear comparison with extended courses of conduct spanning months or years, yet the sentence was not proportionately lower (at [52]). The majority also held that the sentencing judge should have tempered the weight given to general deterrence because the applicant, while not formally diagnosed with intellectual disability, was described by the forensic psychologist as intellectually unsophisticated and suffering from social anxiety, with consequences similar to intellectual disability reflected in his lack of insight (at [44]).

Ground 2: Manifest Excess (Dissent)

McNaughton J dissented on Ground 2 and would have dismissed the appeal. His Honour emphasised that the offence now carries a maximum of life imprisonment, making pre-2018 comparative sentences of limited relevance (at [64]). His Honour also rejected the extension of the general deterrence tempering principle to this applicant, noting that Dr Seidler's report did not support a finding of impaired ability to appreciate the seriousness of his actions and that no argument on this point had been advanced before the sentencing judge (at [69], [74], [79]). McNaughton J concluded that the sentence, while stern, fell within the wide discretionary range available to the sentencing judge (at [90]).

Resentencing

The majority resentenced the applicant, adopting a notional starting point of 8 years (equivalent to the starting point used in Eacott) and applying the same 35 percent discount used by the sentencing judge. The resulting sentence was 5 years and 3 months imprisonment with a non-parole period of 3 years and 3 months commencing 7 April 2020 (at [55]).

Orders Made

  • Leave to appeal against the sentence imposed by the District Court on 12 August 2021 was granted.
  • The appeal was allowed and the District Court sentence was set aside.
  • The applicant was resentenced to a non-parole period of 3 years and 3 months commencing 7 April 2020, with a balance of term of 2 years.
  • The applicant was noted as first eligible for release on 6 July 2023.

Key Takeaways

  • The duration of offending within a section 66EA charge is a material factor in assessing objective seriousness. The Court of Criminal Appeal described seven-day conduct as sitting at the very lowest end of a range capable of constituting maintaining an unlawful sexual relationship, distinguishing it from cases spanning months or years (at [30]).

  • Where a forensic psychologist identifies an offender as intellectually unsophisticated with consequent lack of insight, even without a formal diagnosis of intellectual disability, the majority held that general deterrence should be given reduced weight in sentencing (at [44]). McNaughton J dissented, finding the evidence insufficient to justify extending the principle to this applicant (at [69], [74]).

  • Comparative sentencing cases decided under the former maximum penalty of 25 years for section 66EA offences carry limited weight following the 2018 increase to life imprisonment. McNaughton J emphasised this strongly in dissent, while the majority treated those cases as providing some guidance on the proportionality of the sentence (at [47], [64]).

  • A breach of trust arising from a stepparent relationship properly affects the starting point for sentencing but does not necessarily place conduct higher on the gradated scale of objective seriousness simply because such a relationship is a common feature of the offence type (at [32]).

  • Under the section 66EA framework, the portmanteau offence can be used to embrace conduct occurring partly in another state, in this case Queensland, where both parties agree to that approach to resolve the totality of offending (at [18]).

Legislation and Cases Referenced

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

Cases
- Aslan v R [2014] NSWCCA 114
- Burr v R [2020] NSWCCA 282
- Byrne v R; Cahill v R [2021] NSWCCA 185
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Eacott (a pseudonym) v R [2019] NSWCCA 158
- GP (a pseudonym) v R [2021] NSWCCA 180
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Jeffree v R [2017] NSWCCA 72
- Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
- Magro v R [2020] NSWCCA 25
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mills v R [2017] NSWCCA 87
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Park v The Queen (2021) 395 ALR 193; [2021] HCA 37
- R v Anderson [1981] VR 155
- R v Gavel [2014] NSWCCA 56
- R v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unrep)
- R v RB [2022] NSWCCA 142
- S v The Queen (1989) 168 CLR 266; [1989] HCA 66
- SB v R [2022] NSWCCA 164
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- The Queen v Verdins (2007) 16 VR 269; [2007] VSCA 102