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Court of Criminal Appeal 5 December 2022

Rex v Taylor

[2022] NSWCCA 256

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE BY CROWN AGAINST INADEQUACY APPEALS APPEAL AGAINST SENTENCE

Citation: Rex v Taylor [2022] NSWCCA 256
Court: Court of Criminal Appeal (NSW)
Date: 5 December 2022
Judges: Simpson AJA (principal judgment); Davies J (concurring with additional remarks); Wilson J (agreeing in part, dissenting in result)

Background

The respondent pleaded guilty to using a carriage service to procure a person under 16 years of age for sexual activity, an offence under s 474.26(1) of the Criminal Code 1995 (Cth) carrying a maximum of 15 years' imprisonment. Because the respondent had prior child sexual abuse convictions, s 16AAB of the Crimes Act 1914 (Cth) mandated a minimum sentence of 4 years' imprisonment. That minimum could be reduced under s 16AAC only in limited circumstances, including by up to 25% for a guilty plea.

The sentencing judge imposed 3 years' imprisonment with a recognizance release order taking effect after 18 months, a sentence below the statutory minimum on account of the guilty plea. The offence had been committed while the respondent was subject to four good behaviour bonds, including one for indecent assault of a child under 10. The sentencing judge did not expressly take the respondent's status on conditional liberty into account.

The Commonwealth Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), contending the sentence was manifestly inadequate on four grounds.

  • Whether the sentencing judge erred by imposing a sentence equivalent to the mandatory minimum without expressly finding the offending fell within the least serious category, as discussed in R v Delzotto [2022] NSWCCA 117.
  • Whether such a sentence was available given the facts found by the sentencing judge.
  • Whether the sentencing judge erred by failing to take into account that the offence was committed while the respondent was subject to conditional liberty (four good behaviour bonds).
  • Whether the sentence was manifestly inadequate overall.
  • Whether identified specific error is, of itself, sufficient to justify appellate intervention to increase a sentence on a Crown appeal.

Decision

Grounds 1 and 2: The mandatory minimum and the "least serious category" principle

Simpson AJA, with whom Davies J and Wilson J agreed on this point, held that R v Delzotto does not stand for the proposition that a court must expressly characterise an offence as falling within the "least serious category" before it can impose the mandatory minimum. There is no legislative requirement to that effect. The mandatory minimum operates as a yardstick, analogously to a maximum penalty, and the sentencing court must still evaluate proportionality across the full range of relevant factors. The mandatory minimum does not simply set a floor; it is itself a calibrating reference point in sentencing.

Ground 3: Conditional liberty

All three judges agreed that the sentencing judge had erred in failing to expressly address the respondent's status on conditional liberty. The court confirmed that offending while subject to conditional liberty is a seriously aggravating factor, and one too significant to be taken into account only implicitly, particularly where the prior offending was of the same character as the current offence.

Grounds 4 and 5: Manifest inadequacy and whether to intervene

Despite finding the error on Ground 3, the majority (Simpson AJA and Davies J) held the sentence was not manifestly inadequate. The majority preferred the approach articulated in R v Manojlovic [2020] NSWCCA 315: on a Crown appeal, specific error may help explain why a sentence was inadequate, but does not of itself establish manifest inadequacy or justify the court's intervention to increase the sentence. The appeal was accordingly dismissed. Wilson J dissented, concluding that the identified error did establish manifest inadequacy and that the court's discretion to re-sentence had been enlivened, though she did not specify the sentence she would have imposed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A sentencing court is not required to expressly find that an offence falls within the "least serious category of offending" before imposing the mandatory minimum sentence under s 16AAB of the Crimes Act 1914 (Cth). The Court of Criminal Appeal clarified that R v Delzotto imposes no such express characterisation requirement.

  • Where a mandatory minimum is prescribed by statute, it operates as a sentencing yardstick, similar in function to a maximum penalty. It constrains proportionality without eliminating it as a relevant consideration.

  • Offending while on conditional liberty is a seriously aggravating factor that must be expressly addressed in sentencing reasons, especially where the earlier offending and the current offence are of the same kind. Subliminal or implicit consideration of this factor is insufficient.

  • On a Crown appeal, the identification of a specific sentencing error does not, without more, establish that the sentence is manifestly inadequate, nor does it automatically enliven the appellate discretion to increase the sentence. The majority confirmed the approach in Manojlovic: manifest inadequacy remains the threshold question.

  • The decision produced a split result: the majority dismissed the appeal notwithstanding the identified error, while Wilson J dissented on the basis that the error rendered the 18-month effective custodial term manifestly inadequate given the gravity of the offending and the respondent's history.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 474.26(1)
- Crimes Act 1914 (Cth), ss 3, 16AAB, 16AAC, 16A, 17A
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 9
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)
- Migration Act 1958 (Cth), ss 233CA, 233C, 236B
- Crimes Act 1900 (NSW), ss 91H, 91K
- Criminal Code 1995 (Cth), ss 474.22, 474.22A, 474.26
- Child Protection (Offenders Registration) Act 2000 (NSW), s 14A

Key Cases:
- R v Delzotto [2022] NSWCCA 117
- Bahar v The Queen (2011) 45 WAR 100; [2011] WASCA 249
- Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Karim v R; Magaming v R (2013) 83 NSWLR 268; [2013] NSWCCA 23
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- Johnson v The Queen (2004) 218 CLR 451; [2004] HCA 15
- Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
- Parente v R [2017] NSWCCA 284