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Court of Criminal Appeal 25 March 2022

R v PC

[2022] NSWCCA 59

Sexual offences
CRIMINAL LAW SENTENCE APPEAL ERROR MADE OUT CRIMINAL LAW SENTENCE APPEAL

Citation: R v PC [2022] NSWCCA 59
Court: Court of Criminal Appeal
Date: 25 March 2022
Judge(s): Davies J, Bellew J, Fagan J

Background

A jury in the District Court at Goulburn convicted the respondent on six counts of indecent assault and one count of an act of indecency against his stepdaughter, committed between 2016 and 2018 when she was aged between 13 and 15. The respondent was aged approximately 34 to 36 at the time and lived in a de facto relationship with the victim's mother. The victim had called him "Dad" since she was around six years old.

The offending involved repeated physical contact of a sexual nature, including touching the victim's genitals through clothing, placing her feet against his erect penis, and masturbating at the foot of her bed while she slept. The District Court imposed a Community Corrections Order for each offence, with the longest order running for 15 months, all to be served concurrently.

The Crown appealed on two grounds: first, that the sentencing judge had wrongly treated the respondent's potential registration under the child protection offenders register as a mitigating factor; and second, that the sentences were manifestly inadequate.

  • Whether the requirement to register under the Child Protection (Offenders Registration) Act 2000 (NSW) constitutes a form of extra-curial punishment that operates as a mitigating factor at sentencing
  • Whether Community Corrections Orders imposed across all seven counts were manifestly inadequate, given the nature and circumstances of the offending
  • Whether the Crown prosecutor appearing at sentence failed to properly assist the sentencing judge, thereby contributing to the manifestly inadequate outcome
  • What effect the anonymisation regime under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) has on general deterrence in child sexual assault cases

Decision

Ground 1: Sex offender registration as a mitigating factor

The Court upheld this ground. The sentencing judge had treated the prospect of registration under the child protection register as a form of extra-curial punishment and a mitigating factor on sentence. The Court of Criminal Appeal found that approach involved error.

Ground 2: Manifest inadequacy

The Court also upheld this ground. The sentencing judge had made several findings that pointed squarely toward a custodial sentence: the respondent had breached a position of trust; there was a need for general deterrence; the offending escalated over 18 months; the victim was vulnerable; and the pattern of offending diminished the mitigating weight of good character. The Court found a significant displacement between those conclusions and the imposition of Community Corrections Orders.

Additional errors undermined the sentencing judge's reasoning. The respondent had maintained his denial of the offences throughout, expressed no remorse, and accepted no responsibility, yet the sentencing judge found he had "excellent" prospects of rehabilitation. The Court found little basis for that finding. The sentencing judge also found the respondent's motivation was "not purely sexual" and that he had acted impulsively, but the Court found neither conclusion was supported by the evidence. The escalating and repeated nature of the offending was directly inconsistent with impulsivity.

Conduct of the Crown at sentence

Senior counsel for the respondent argued that the Crown prosecutor at sentence had contributed to the manifestly inadequate outcome by doing no more than asserting, in bald terms, that a custodial sentence was required. The Court firmly rejected that submission. The Crown had provided lengthy written submissions addressing the relevant issues comprehensively by reference to authority, culminating in the position that full-time custody was the only appropriate outcome. The Court also rejected the suggestion that the Crown should have gone further and assisted the sentencing judge with indicative sentence figures, noting that such an approach would have been contrary to the High Court's decision in Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58.

Observations on anonymisation and general deterrence

Fagan J, with whom Davies J expressly agreed, made observations about the practical effect of s 15A of the Children (Criminal Proceedings) Act 1987 on general deterrence. His Honour noted that the statutory anonymisation regime, while designed to protect victims, also shields offenders from community exposure. Combined with the media's natural caution in reporting on suppressed proceedings, the result is that sentencing outcomes in child sexual assault cases involving family relationships receive little or no public attention. Fagan J observed that this regime likely diminishes, if not eliminates, the general deterrent effect of sentences in this category of case, and expressed the view that the matter would warrant consideration by the Law Reform Commission.

Orders Made

• Count 7: Community Corrections Order with an additional condition of 200 hours of community service

Note: The judgment records that the respondent was re-sentenced to a term of imprisonment and the Community Corrections Orders were set aside, but the specific terms of the re-sentencing orders were not included in the text provided.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the obligation to register under the Child Protection (Offenders Registration) Act 2000 (NSW) does not constitute extra-curial punishment and cannot properly be treated as a mitigating factor on sentence.
  • A significant displacement between a sentencing judge's own findings about objective seriousness and the sentence actually imposed can, of itself, establish manifest inadequacy warranting intervention on Crown appeal.
  • Where an offender maintains denial, expresses no remorse, and accepts no responsibility for offences of which a jury has found them guilty, a sentencing court has little foundation on which to conclude that prospects of rehabilitation are excellent.
  • Under the principle affirmed in Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58, the Crown is not required to put specific indicative sentences to a sentencing judge; submitting that full-time custody is appropriate, supported by comprehensive written submissions on the relevant principles, satisfies the Crown's obligations.
  • Fagan J (with whom Davies J agreed) observed that the anonymisation required by s 15A of the Children (Criminal Proceedings) Act 1987 likely defeats the objective of general deterrence in child sexual assault cases involving family relationships, and suggested the issue warrants examination by the Law Reform Commission.

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Crimes Act 1900 (NSW), ss 61M(2), 61N(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Carrington v R [2021] NSWCCA 257
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- DJV v R [2008] NSWCCA 272
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Daetz [2003] NSWCCA 216