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Court of Criminal Appeal 10 May 2023

GG v R

[2023] NSWCCA 102

Sexual offences
CRIME APPEAL APPEAL AGAINST SENTENCE MANIFEST EXCESS NO ERROR APPEAL DISMISSED

Citation: GG v R [2023] NSWCCA 102
Court: Court of Criminal Appeal, New South Wales
Date: 10 May 2023
Judge(s): Bell CJ, Davies J, N Adams J (N Adams J delivered the leading judgment; Bell CJ and Davies J agreed)

Background

The applicant, referred to by the pseudonym "GG," pleaded guilty to eight counts of child sexual assault and related child abuse offences involving three separate male victims. The offending spanned 11 years, from January 2004 to July 2015, and involved three victims identified by the pseudonyms AA, BB, and CC. Five additional offences were placed on "Form 1s" (a procedural mechanism under s 33(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), meaning those offences are taken into account when sentencing without the offender being formally convicted of them). A further five counts were not proceeded with.

The offending included aggravated sexual intercourse with children, aggravated indecent assault, procuring children for unlawful sexual activity, producing child pornography, and possession of approximately 50,000 child abuse images and 200 child abuse material files. Elements of violence or force were present in offences against the first two victims, and the applicant engaged in clear grooming behaviour.

The applicant was sentenced in the Gosford District Court in February 2019. He received an aggregate head sentence of 23 years imprisonment with a non-parole period of 15 years and 4 months, commencing 13 August 2015. He sought an extension of time and leave to appeal, arguing the sentence was manifestly excessive.

  • Whether the applicant was entitled to an extension of time to bring his appeal, given his Notice of Intention to Appeal was not filed until more than two years after sentencing.
  • Whether the aggregate sentence of 23 years was manifestly excessive on the ground that the sentencing judge misapplied the totality principle.
  • Whether the degree of notional accumulation built into the aggregate sentence was appropriate.

Decision

The Court granted the extension of time, accepting that the delay appeared to result from oversight by the applicant's former solicitor rather than deliberate inaction. Given the length of the sentence and the circumstances, the Court considered it appropriate to allow the application to proceed.

On the merits, the Court confirmed the established test: an appeal on the ground of manifest excess requires the applicant to demonstrate the sentence is unreasonable or plainly unjust, not merely that an appellate court might have imposed a lighter sentence. The applicant's sole complaint was confined to the totality principle; he did not challenge the sentencing judge's findings on objective seriousness, his subjective case, or the individual indicative sentences.

The totality principle requires a sentencing court, when dealing with multiple offences, to step back and assess whether the overall sentence appropriately reflects the totality of the criminal conduct. In an aggregate sentencing context, the appellate question is whether the aggregate sentence reflects that totality. The Court noted that a significant degree of notional accumulation (that is, the extent to which individual indicative sentences are compressed when combined into the aggregate) can signal error, but only if the indicative sentences themselves are found to be appropriate. Here, the applicant did not challenge the indicative sentences, which undermined any argument based on notional accumulation.

Having regard to the breadth of the offending across eight counts plus Form 1 matters, three victims, 11 years, extensive child abuse material, elements of violence and grooming, and a subjective case that offered very little mitigation beyond a late guilty plea and an autism spectrum disorder diagnosis, the Court found the aggregate sentence stern but not manifestly excessive. No error in the application of the totality principle was established, and the appeal was dismissed.

Orders Made

  • Extension of time to bring the appeal granted.
  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, to succeed on a ground of manifest excess, an applicant must show the sentence is unreasonable or plainly unjust. The mere possibility that an appellate court would have imposed a lesser sentence is insufficient.
  • In assessing aggregate sentences for alleged misapplication of the totality principle, the relevant appellate question is whether the aggregate sentence reflects the totality of the criminality involved, not whether any particular arithmetic comparison between indicative and aggregate sentences reveals compression.
  • A significant degree of notional accumulation in an aggregate sentence may point toward error, but only where the underlying indicative sentences are themselves accepted as appropriate. Where an applicant does not challenge the indicative sentences, arguments based on the level of compression carry reduced weight.
  • In dismissing the appeal, the Court treated the combination of multi-victim offending over a prolonged period, violence, grooming, extensive child abuse material, prior similar convictions, and limited mitigating factors as collectively justifying a lengthy aggregate sentence.
  • Procedural delay in filing a Notice of Intention to Appeal attributed to solicitor oversight, rather than the applicant's own inaction, can support a grant of an extension of time, particularly where the sentence is substantial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61M(2), 61O(1), 66C(1)(3)(4), 66EB(2), 91G(2)(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 33(1), 44(2B), 53A

Cases:
- Aryal v R [2021] NSWCCA 2
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 46; [2002] NSWCCA 518
- Benn v R [2023] NSWCCA 24
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- JM v R (2014) 245 A Crim R 528; [2014] NSWCCA 297
- Lee v R [2020] NSWCCA 244
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Newman (a pseudonym) v R [2019] NSWCCA 157
- Noonan v R [2021] NSWCCA 35
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Holder; R v Johnston [1983] 3 NSWLR 245