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Court of Criminal Appeal 25 March 2022

AB v R

[2022] NSWCCA 62

Sexual offences
CRIME APPEAL SEXUAL OFFENCES AGAINST A CHILD NO QUESTION OF PRINCIPLE

Citation: AB v R [2022] NSWCCA 62
Court: NSW Court of Criminal Appeal
Date: 25 March 2022
Judge(s): Beech-Jones CJ at CL, Price J, N Adams J

Background

The applicant was convicted of three serious sexual offences against a young child: sexual intercourse with a child under 10 years (s 66A(1) Crimes Act 1900), grooming a child under 14 years for unlawful sexual activity (s 66EB(3)), and intentionally carrying out a sexual act with a child under 10 years (s 66DC(a)). Two further offences were included on a Form 1 (a document attached to the principal charges that allows additional offences to be taken into account at sentencing without separate conviction). The victim was the daughter of the woman the applicant was living with, and was aged between 5 and 8 years during the offending period of 2016 to 2019.

At first instance, Judge Weinsten SC in the District Court imposed an aggregate sentence of 8 years and 6 months imprisonment, with a non-parole period of 5 years and 8 months. Indicative sentences were specified for each individual offence. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

The applicant did not challenge any of the primary judge's factual findings. His sole ground of appeal was that the aggregate sentence was unreasonable or plainly unjust, that is, manifestly excessive.

  • Whether the aggregate sentence of 8 years and 6 months was manifestly excessive, having regard to the sentencing judge's finding that the objective seriousness of each offence fell just below the mid-range.
  • Whether sentencing statistics and comparable cases supported a finding of manifest excess.

Decision

The Court applied the principle from Hili v The Queen; Jones v The Queen (2010) 242 CLR 520, which holds that appellate intervention for manifest excess is warranted only where the difference from other sentences is such that the appellate court concludes there must have been some misapplication of principle, even if that misapplication is not expressly identifiable in the reasons. A sentence being markedly different from other cases is not, by itself, sufficient justification for intervention.

The applicant argued that, although the individual indicative sentences could not be characterised as excessive, the aggregate was too high given the objective seriousness findings. The Court rejected this argument. Beech-Jones CJ at CL examined three comparable cases relied on by the applicant and found that none supported a conclusion of manifest excess.

In R v ND, a single s 66A offence was committed when the maximum penalty was 25 years, not the current maximum of life imprisonment, making direct comparison of limited assistance. In R v JJ, two s 66A offences attracted an aggregate of 8 years with no guilty plea discount, and the Court found the present applicant's offending was worse, involving three offences plus two Form 1 matters. In Scott v R, the Court had found exceptional circumstances, describing the offending as almost fleeting and an inexplicable aberration by a person of unblemished good character, circumstances not present here.

Having regard to the sentencing judge's findings on the objective seriousness of the three offences, the Court concluded that neither the indicative sentences nor the aggregate sentence were manifestly excessive. Leave to appeal was granted but the appeal was dismissed. Given that conclusion, the Court found it unnecessary to resolve a procedural dispute about whether certain evidence had been properly read on the "usual basis" under Betts v The Queen.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that manifest excess is a conclusion, not simply a mechanical comparison: appellate intervention requires that the difference in sentence reflects some underlying misapplication of principle.
  • A sentencing judge's finding that offences fall "just below the mid-range" of objective seriousness does not automatically render an aggregate sentence manifestly excessive if the totality of the offending is substantially more serious than in comparable cases.
  • Comparable cases used as sentencing benchmarks must be assessed carefully for differences in maximum penalties, the number of offences, guilty plea discounts, and any exceptional circumstances found by the sentencing court. The Court here found all three cases relied upon by the applicant to be materially distinguishable.
  • Where a case has been found at first instance to lack the exceptional features present in an apparently similar appeal (such as the near-aberrational circumstances in Scott v R), that distinction justifies a more severe sentence outcome.
  • The applicant was identified only as "AB" throughout, reflecting the prohibition under s 15A of the Children (Criminal Proceedings) Act 1987 and s 578A of the Crimes Act 1900 on publishing any material likely to identify the victim, which extended in these circumstances to the applicant's name.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(1), 66DC(a), 66EB(3), 61O(2) (former), 61M(2) (former), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32(1), 53A(2)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- R v AB [2020] NSWDC 521
- R v JJ [2019] NSWCCA 148
- R v ND [2016] NSWCCA 103
- Scott v R [2020] NSWCCA 81