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Court of Criminal Appeal 16 March 2022

Darke v R

[2022] NSWCCA 52

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE RESENTENCE

Citation: Darke v R [2022] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 16 March 2022
Judge(s): Johnson J, Lonergan J (principal judgment), Dhanji J

Background

The appellant was sentenced in the Sydney District Court in December 2020 for offences under the Criminal Code Act 1995 (Cth). The principal count involved engaging in conduct with the intention of procuring a nine-year-old Canadian child to engage in sexual activity outside Australia, contrary to s 272.14(1) of the Criminal Code. Two further offences involving the use of a carriage service to solicit and transmit child pornography were taken into account on sentence.

The offending occurred over four weeks in August to September 2016 and consisted of extensive sexually explicit communications via Facebook Messenger with the child's mother in Canada. The communications included the appellant soliciting sexual images of the girl, coaching the mother on sexual activity involving the child, and having the mother show the sleeping child's naked body via video call. The appellant never travelled to Canada and had no direct sexual contact with the child.

The District Court initially imposed three years imprisonment with a two-year non-parole period. The sentence was subsequently modified under the slip rule, but concerns arose about whether the modified sentence properly complied with the relevant provisions of Part 1B of the Crimes Act 1914 (Cth). The appellant sought leave to appeal on several grounds.

  • Whether the sentencing judge erred by failing to refer to and apply s 16A(2AAA) of the Crimes Act 1914 (Cth), which contains mandatory sentencing considerations for child sexual offences
  • Whether the sentencing judge failed to give adequate weight to delay in the prosecution
  • Whether the sentencing judge failed to give adequate weight to the appellant's cooperation with authorities under s 16A(2)(h) of the Crimes Act
  • Whether the sentencing judge failed to consider, under s 17A, that no sentence other than imprisonment was appropriate
  • Whether the sentence was manifestly excessive

Decision

The Crown conceded error on ground 1(b), accepting that the sentencing judge had failed to refer to and apply s 16A(2AAA) of the Crimes Act 1914 (Cth). Lonergan J found the concession was properly made. Because a sentencing error was established, the Court of Criminal Appeal was required to resentence the appellant afresh, in accordance with the principles in Kentwell v R (2014) 252 CLR 601.

The remaining grounds under ground 1 (delay, cooperation, and s 17A) were each dismissed. Because the Court was already resentencing, it was unnecessary to separately consider whether the original sentence was manifestly excessive.

On resentencing, Lonergan J noted that the slip rule correction at first instance had in effect produced a more onerous sentence than that originally imposed. Taking this into account, the Court considered it appropriate to maintain the overall three-year term but to structure the release conditions by way of a recognisance release order for one year upon the appellant serving two years, accompanied by conditions including supervision by Community Corrections NSW, restrictions on interstate and overseas travel, and participation in treatment and rehabilitation programs including a sex offender treatment program.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed on 15 February 2021 quashed
  • Appellant sentenced to 3 years imprisonment commencing 15 January 2020 and expiring 14 January 2023
  • Directed that the appellant be released on giving security of $1 after serving 2 years, subject to a recognisance release order for 1 year commencing 14 January 2022, on the following conditions:
  • Accept the supervision of Community Corrections NSW
  • Obey all reasonable directions of Community Corrections NSW
  • Not travel interstate or overseas without the permission of Community Corrections NSW
  • Undertake treatment and rehabilitation programs as directed, including psychological counselling, EQUIPS (Addiction) or similar, and sex offender treatment program(s)

Key Takeaways

  • A failure to refer to and apply s 16A(2AAA) of the Crimes Act 1914 (Cth) when sentencing for relevant child sexual offences constitutes a legal error in sentencing, triggering a requirement to resentence afresh.
  • Where a sentencing error is established on appeal, the Court of Criminal Appeal is required to resentence the offender de novo rather than merely adjust the original sentence, consistent with the High Court's approach in Kentwell v R.
  • The Court of Criminal Appeal confirmed that where a slip rule correction at first instance produces a more onerous outcome than the original sentence, this is a relevant consideration in fixing the resentenced term.
  • Grounds of appeal based on delay, cooperation with authorities, and the s 17A no-imprisonment question were each rejected on the facts, illustrating that conceded error on one ground does not automatically lend weight to other unrelated grounds.
  • Under s 16A(2AAA), sentencing courts dealing with Commonwealth child sexual offences carry a mandatory obligation to address specific statutory considerations, and omission of this step is a reviewable error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), including ss 16A(2)(h), 16A(2AAA), 16BA, 17A, 19AHA, 20(1)(b), and Part 1B
- Criminal Code Act 1995 (Cth), including ss 272.14(1) and 474.19(1)
- Crimes Sentencing Procedure Act 1999 (NSW), s 43
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measure) Bill 2019

Cases:
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Young (a pseudonym) v R [2021] NSWCCA 163
- Baden v R [2020] NSWCCA 23
- R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
- Scook v The Queen (2008) 185 A Crim R 164; [2008] WASCA 114