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Court of Criminal Appeal 1 February 2022

R v AB

[2022] NSWCCA 3

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE MANIFEST INADEQUACY

Citation: R v AB [2022] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 1 February 2022
Judges: Meagher JA; Wright J; Fagan J

Background

The respondent, referred to as AB, pleaded guilty in the District Court to nine charges of sexual offending against a 14-year-old boy (AS), whom he had met through the online application Grindr. AB was 25 at the time. The offending spanned a period from late June to September 2018 and involved two physical meetings at which multiple sexual acts occurred, as well as the production and exchange of child abuse material. Three further offences were taken into account on Form 1s.

The sentencing judge in the District Court dealt with all nine offences under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, discharging AB without recording a conviction and placing him on a two-year conditional release order. AB had already spent approximately eight and a half months in custody prior to being released on bail.

The Crown appealed on the single ground that the sentence was manifestly inadequate, arguing that the objective seriousness of the offending and the principles of general deterrence, denunciation, and recognition of harm to the victim required that convictions be recorded.

  • Whether the sentence, specifically the failure to record convictions, was manifestly inadequate and therefore unreasonable or plainly unjust within the meaning of the House v The King standard
  • Whether the objective seriousness of the offending necessarily required that convictions be recorded, notwithstanding the respondent's exceptional subjective circumstances
  • Whether the sentencing judge gave insufficient weight to general deterrence, denunciation, and recognition of harm to the victim in child sexual abuse cases
  • Whether the sentencing judge's reliance on R v Mauger and R v Le was misplaced, given that those cases involved offending assessed as being at the very lowest end of seriousness

Decision

The Court of Criminal Appeal dismissed the appeal, finding that the sentence was not manifestly inadequate. The Crown accepted from the outset that AB had a powerful subjective case and did not contest that alternatives to further full-time imprisonment were available to the sentencing judge. The narrow issue was therefore whether the failure to record convictions, taken alone, rendered the sentence unreasonable.

Central to the sentencing judge's reasoning was unchallenged medical evidence establishing a causal link between AB's own severe childhood sexual and physical abuse and his offending. The sentencing judge described AB's life history as one of the most compelling she had encountered. The Court of Criminal Appeal found no basis to disturb those findings, noting that the Crown had not identified any error of principle, irrelevant consideration, or factual mistake in the sentencing remarks.

On general deterrence, the sentencing judge had found that the extraordinary uniqueness of AB's circumstances rendered it of reduced relevance, while acknowledging it was not entirely absent. The Court accepted that the observation in EG v R regarding the heightened importance of deterrence and denunciation in child sexual abuse cases does not operate as a universal rule and must be qualified by the particular circumstances of each case.

The Court also addressed two subsidiary arguments briefly. The absence of any recorded precedent in statistics for a non-conviction outcome under s 66C(3) was explicable by the exceptional nature of AB's case, rather than being indicative of error. The sentencing judge's references to Mauger and Le may have involved some error in treating "nature of the offence" under s 10 as extending beyond objective seriousness, but that error was not material to her Honour's reasoning or relied upon by the Crown.

Orders Made

  • The Crown appeal was dismissed.
  • The sentence imposed by the District Court (discharge without conviction on a two-year conditional release order under s 10(1)(b)) was affirmed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a no-conviction outcome under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 is not automatically precluded by the objective seriousness of the offending, even where multiple serious child sexual offences are involved.
  • Unchallenged medical evidence establishing a causal link between an offender's own childhood sexual abuse and their later offending can constitute an exceptional subjective circumstance capable of supporting a departure from what would otherwise be expected sentencing outcomes.
  • General deterrence and denunciation remain relevant considerations in child sexual abuse cases, but the observation in EG v R that these factors carry heightened weight in such cases does not establish an absolute rule; the weight to be given to them depends on the specific circumstances of each case.
  • A Crown appeal on the ground of manifest inadequacy requires more than demonstrating a markedly different result from other cases; intervention is only warranted where the difference is such that a misapplication of principle must be inferred, consistent with House v The King and Wong v The Queen.
  • Suppression obligations in proceedings involving child complainants and defendants who were themselves child victims apply to reporting of the decision, with pseudonyms used throughout the judgment to protect the identities of both AB and AS.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(b)
- Crimes Act 1900 (NSW), ss 61O(2A), 66C(3), 91G(2)(a), 578A(2)
- Criminal Appeal Act 1912 (NSW), s 5D
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a)
- Criminal Procedure Act 1986 (NSW)

Cases
- House v The King (1936) 55 CLR 499
- Wong v The Queen (2001) 207 CLR 584
- Elias v The Queen (2013) 248 CLR 483
- EG v R [2015] NSWCCA 21
- Re Attorney General's Application under Section 37 (No. 3 of 2002) (NSW) (2004) 61 NSWLR 305
- R v Mauger [2012] NSWCCA 51
- R v Le [2019] NSWSC 633
- Walden v Hensler (1987) 163 CLR 561
- R v ZB [2021] QCA 9
- Cobiac v Liddy (1969) 119 CLR 257
- Hoffenberg v District Court of New South Wales [2010] NSWCA 142
- R v Ingrassia (1997) 41 NSWLR 447
- R v McInerney (1986) 42 SASR 111