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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
Date: 5 December 2022
Judge(s): Simpson AJA (at [1]), Davies J (at [104]), Wilson J (at [107])

Background

The respondent pleaded guilty to using a carriage service to procure a person under the age of 16 years for sexual activity, contrary to section 474.26(1) of the Criminal Code 1995 (Cth). He had a significant history of sexual offending against children, including convictions for indecent assault, voyeuristic filming of a child in a public toilet, and producing child abuse material. At the time of the present offence, he was subject to four good behaviour bonds imposed in 2018.

The offence arose from a police operation in which an officer posed online as a 13-year-old boy. Over a period of several weeks, social media exchanges with the respondent escalated in sexual content. The respondent attended an arranged meeting, carrying lubricant and a mobile phone containing the relevant messages.

The sentencing judge imposed a term of 3 years imprisonment with release on recognisance after 18 months. That sentence sat below the mandatory minimum of 4 years prescribed by section 16AAB of the Crimes Act 1914 (Cth), reduced by reason of the guilty plea under section 16AAC. The Director of Public Prosecutions appealed, contending the sentence was manifestly inadequate.

Legal Issues

  • Whether a mandatory minimum sentence under section 16AAB can only lawfully be imposed where an offence falls within the "least serious category of offending."
  • Whether the sentencing judge erred by failing to expressly take into account that the respondent committed the offence while subject to four conditional liberty orders.
  • Whether specific sentencing error identified on a Crown appeal, without proof of manifest inadequacy, is sufficient to enliven the Court's discretion to re-sentence.
  • Whether the sentence of 3 years imprisonment was manifestly inadequate overall.

Decision

Grounds 1 and 2: Whether the mandatory minimum is confined to the least serious category of offending

The appellant argued that, unless an offence is expressly found to fall within the "least serious category of offending," the mandatory minimum sentence cannot be imposed and a higher sentence must follow as a matter of law. The Court rejected that proposition (at [53]-[78]). No such rule appears in the text of sections 16AAB or 16AAC, and the language used by McLure P in Bahar v The Queen at [55], upon which the appellant relied, was not intended to create a prescriptive legal constraint of that kind (at [72]-[73]).

A mandatory minimum sentence operates as a yardstick in the sentencing exercise, just as a prescribed maximum does (at [66]-[67]). It does not eliminate proportionality as a sentencing consideration, nor does it impose an additional judicially created rule confining the minimum to a defined sub-category of cases (at [61]-[67]). The Court noted the analogy with Parente v R, where a judicially developed prescriptive "principle" was held to impermissibly constrain the sentencing discretion beyond what the legislature ordained (at [68]). Grounds 1 and 2 were dismissed.

Ground 3: Failure to consider conditional liberty

The Court found that the sentencing judge had not expressly addressed the fact that the respondent committed the offence while subject to four good behaviour bonds (at [83]-[89]). That was a material omission. Commission of an offence while subject to conditional liberty is a seriously aggravating factor and an important sentencing consideration, particularly where the prior offending is of the same character (at [86]-[89]). Ground 3 was established.

Consequences of the error: manifest inadequacy and the residual discretion

The majority (Simpson AJA and Davies J) declined to decide whether identified specific error in a Crown appeal is alone sufficient to enliven the re-sentencing discretion, or whether manifest inadequacy must also be established, noting the point was not fully argued (at [91], [106]). Wilson J, in dissent on this point, held that specific error was sufficient and that manifest inadequacy need not be separately proved (at [113]-[114]).

All members of the Court agreed that, taking the sentencing picture as a whole, the sentence was not manifestly inadequate (at [99], [106], [118]-[119], with Wilson J dissenting on this conclusion). The majority declined to intervene, exercising the residual discretion in the respondent's favour. Relevant considerations included the delay between offending and sentencing, the proximity of the scheduled release date, and the effect of COVID-19 restrictions on the respondent's access to treatment (at [100]-[101]). The appeal was dismissed.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A mandatory minimum sentence prescribed by section 16AAB of the Crimes Act 1914 (Cth) operates as a yardstick in the sentencing exercise, like a statutory maximum, but does not create a rule of law confining its imposition to cases expressly found to be "within the least serious category of offending" (at [67]-[78]).

  • The principle in Bahar v The Queen that the mandatory minimum is "for offences within the least serious category of offending" describes the yardstick function of the minimum, not a prescriptive threshold that must be satisfied before the minimum can be imposed (at [72]-[73]).

  • Failure to address expressly that an offence was committed while the offender was subject to conditional liberty constitutes a specific sentencing error, given that such status is a seriously aggravating factor that requires explicit consideration, especially where the prior conduct is of a similar character (at [86]-[89]).

  • Whether specific error identified on a Crown appeal is alone sufficient to enliven the appellate discretion to re-sentence, without the Crown additionally proving manifest inadequacy, remains unresolved in New South Wales: the majority declined to decide the point, while Wilson J favoured the view that specific error suffices (at [91], [105]-[106], [113]-[114]).

  • Even where sentencing error is established on a Crown appeal, the Court retains a residual discretion to decline to intervene. Factors such as delay in sentencing, proximity to a scheduled release date, and disruption to rehabilitation programs can bear on the exercise of that discretion (at [100]-[101]).

Legislation and Cases Referenced

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

Cases
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
- Bahar v The Queen (2011) 45 WAR 100; [2011] WASCA 249
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- Glasheen v R [2022] NSWCCA 191
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
- Johnson v The Queen (2004) 218 CLR 451; [2004] HCA 15;
- Karim v R; Magaming v R; Bin Lahaiya; Bayu v R; Alomalu v R (2013) 83 NSWLR 268; [2013] NSWCCA 23
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
- Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Parente v R [2017] NSWCCA 284
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Delzotto [2022] NSWCCA 117
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Pot, Wetangky and Lande (Supreme Court of the Northern Territory, Riley CJ, 18 January 2011)
- R v Ralston (2020) 285 A Crim R 159; [2020] ACTCA 47
- Totaan v R [2022] NSWCCA 75
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Wong v The Queen; Leung v The Queen (2001) 207CLR 584; [2001] HCA 64