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Court of Criminal Appeal 2 March 2022

Arvinthan v R

[2022] NSWCCA 44

Sexual offences
CRIME APPEAL VICTIM UNDER 18 ERROR RESENTENCED LESSE R SENTENCE WARRANTED

Citation: Arvinthan v R [2022] NSWCCA 44
Court: Court of Criminal Appeal, New South Wales
Date: 2 March 2022
Judges: Leeming JA, Rothman J, Harrison J

Background

The applicant pleaded guilty in the Local Court to two offences committed in late December 2019: entering a dwelling with intent to commit a serious indictable offence, and aggravated break and enter while committing a serious indictable offence (sexual touching). The facts established that he had twice entered victims' homes uninvited, and on the second occasion woke a sleeping woman by lying beside her and touching her upper thigh.

At sentencing in the District Court at Parramatta in February 2021, the Crown submitted that the aggravated break and enter offence was made further serious by s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW), because the victim was 17 years old and therefore a child under 18. The sentencing judge accepted that submission and treated the victim's age as an aggravating factor under that provision. An aggregate sentence of 4 years and 6 months was imposed, with a non-parole period of 2 years and 9 months.

On appeal, the Crown conceded it had been wrong to make that submission. The applicant also raised a ground that the sentencing judge failed to give proper weight to the maximum penalties for the serious indictable offences underlying the compound charges.

  • Whether the sentencing judge erred by applying s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as an aggravating factor, on the basis that the victim was under 18, when the victim's age was already an element of the objective assessment of the offending
  • Whether the sentencing judge failed to take proper account of the maximum penalties for the underlying serious indictable offences when assessing objective seriousness
  • Whether, if error was established, a lesser sentence was warranted on resentencing

Decision

The Court of Criminal Appeal unanimously allowed the appeal. The Crown conceded, and the Court agreed, that the sentencing judge had fallen into error on Ground 2 by treating the victim's age as an aggravating circumstance under s 21A(2)(ea). That section applies where the offence is committed in the knowing presence of a child under 18. However, s 21A(2) itself prohibits applying any listed aggravating factor if it is already an element of the offence, and the courts have consistently held that the same fact cannot be used twice to increase sentence severity.

Leeming JA, writing separately to elaborate this point, explained that the sexual touching offence committed against the 17-year-old victim was not an offence that required the victim to be a child as an element (separate provisions cover touching of children under 10 and between 10 and 16). Even so, the victim's age of 17 was necessarily taken into account in assessing the objective seriousness of the sexual touching. Applying s 21A(2)(ea) on top of that assessment would constitute impermissible double-counting. The position would have been different only if a separate child had been present and witnessed the offending.

Leeming JA also noted that the sentencing judge could not be faulted for accepting the Crown's incorrect submission, as defence counsel at the time had not corrected the error. On Ground 1, Rothman J found that the sentencing judge had not adequately reflected the maximum penalties for the relevant serious indictable offences in his assessment. Given the conceded error and the additional ground, the Court resentenced the applicant to a reduced aggregate term.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence of 4 years and 6 months quashed
  • In substitution, aggregate sentence of 3 years and 10 months imposed, commencing 1 March 2020 and concluding 31 December 2023, with a non-parole period of 2 years and 4 months concluding 30 June 2022
  • Applicant first eligible for parole on 30 June 2022
  • Indicative sentence for entering a dwelling with intent (s 111(1)): 18 months (inclusive of Form 1 larceny)
  • Indicative sentence for aggravated break and enter and commit serious indictable offence (s 112(2)): 3 years, with an indicative non-parole period of 18 months

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court cannot apply the child-presence aggravating factor in s 21A(2)(ea) where the same fact has already been taken into account in assessing the objective seriousness of the principal offence, as this constitutes double-counting.
  • The child-presence aggravating factor in s 21A(2)(ea) requires that the child's presence be "knowing" presence, not merely incidental; a child who is asleep or otherwise unaware does not automatically satisfy the circumstance.
  • Where the underlying serious indictable offence in a compound charge does not require the victim to be a child as one of its elements, the victim's age can still be captured fully in the objective seriousness assessment, leaving no room for s 21A(2)(ea) to operate in respect of that same victim.
  • The Court of Criminal Appeal confirmed that the prohibition would not apply if a second, separate child were present and witnessed the offending, since that fact would not already be embedded in the seriousness assessment of the principal offence.
  • A sentencing judge who accepts an incorrect Crown submission on an aggravating factor does not thereby commit a personal error where defence counsel at the time failed to correct it; nonetheless, the resulting sentence may still be set aside on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61KC, 66DA, 66DB, 105A, 111(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(ea), s 21A(2)(eb)

Cases
- Alesbhi v R; Esbhi v R [2018] NSWCCA 30
- Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330
- Jonson v The Queen (2016) 263 A Crim R 268; [2016] NSWCCA 286
- Josefski v R (2010) 217 A Crim R 183; [2010] NSWCCA 41
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- McLaughlin v R [2013] NSWCCA 152
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Seymour [2012] NSWSC 1010
- R v Wickham [2004] NSWCCA 193
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14