AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 19 May 2023

Richards v R

[2023] NSWCCA 107

Sexual offences

Citation: Richards v R [2023] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 19 May 2023
Judges: Beech-Jones CJ at CL; Adamson JA; Price J

Background

The applicant, a former Christian Brother and school teacher, pleaded guilty to six counts of indecent assault and one count of sexual assault with an act of indecency against three male victims aged between 10 and 13 years. The offending occurred at two separate Catholic schools in Sydney across periods in 1969 and 1983 to 1985. The conduct included sexual touching and attempted sexual assault in school settings and on school camps.

These charges formed part of a broader pattern of offending. Across five separate proceedings, the applicant had been sentenced by five different judges for a total of 24 offences against 16 children over 21 years from 1966 to 1987. He had been in continuous custody since November 2014.

At the most recent sentencing, the judge imposed an aggregate term of 8 years' imprisonment with a non-parole period of 5 years, commencing 30 July 2021. Special circumstances were found, adjusting the statutory ratio between the non-parole period and total term from 75% to 62.5%. The applicant sought leave to appeal on five grounds.

  • Whether the sentencing judge failed to give adequate weight to the delay between the offending and the charges being laid
  • Whether the sentencing judge erred by not backdating the commencement of the sentence
  • Whether the total period of continuous imprisonment since 2014, when measured against the combined non-parole periods and total sentence, offended the totality principle and produced an inadequate parole period
  • Whether the aggregate sentence was manifestly excessive
  • Whether the sentencing judge erred in finding that evidence of post-offence good character was of little weight

Decision

Commencement date. The Court held that the choice of a commencement date, including whether to backdate it having regard to pre-sentence custody and the totality principle, falls within the sentencing judge's discretion. Her Honour was plainly aware of the full chronology of proceedings and it was open to her to fix 30 July 2021 as the commencement date. No error was established on this ground.

Post-offence good character. The weight to be given to an offender's post-offence good character is a matter of discretion that varies with all the circumstances. The Court found her Honour's assessment that it was of little weight was open to her, particularly given the nature and extent of the offending.

Delay. The Court rejected the proposition that significant delay in prosecuting historical child sex offences operates as a mitigating factor for the offender. Delay in reporting such offences is common and is properly understood as a consequence of the nature of the offending itself and the offender's own conduct. The Court held it is difficult to see how delay could work in the offender's favour in those circumstances. The Court also confirmed that perpetrators of sexual offences against children are not entitled to a discount simply because their victims did not all come forward at the same time.

Totality and manifest excess. The totality principle requires the court to consider total criminality across all related offending, including prior sentences, without attempting to alter those earlier sentences. The Court found the sentencing judge demonstrably engaged with the cumulative effect of the prior sentences on the applicant's overall custody. On manifest excess, the Court noted that individual indicative sentences may have been somewhat high, but the only sentence subject to appeal was the aggregate sentence. Having regard to the maximum penalties, the seriousness of the conduct, three victims, and the applicant's substantial criminal history, the aggregate sentence of 8 years with a 5-year non-parole period was not manifestly excessive. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Perpetrators of child sexual offences are not entitled to a sentencing discount because their victims reported the offending at different times or after lengthy delay; the Court of Criminal Appeal confirmed that such delay is properly treated as a product of the offending itself, not a mitigating circumstance for the offender.
  • The sentencing court's discretion in choosing a commencement date, including whether to backdate it, will not be disturbed on appeal absent demonstrated error, provided the judge is aware of the relevant chronology and has applied the totality principle.
  • Where an offender has been sentenced by multiple judges across separate proceedings for related offending, the totality principle requires each sentencing court to sentence on the basis that prior sentences are correct, without attempting to adjust them through the new sentence.
  • Post-offence good character remains a relevant mitigating factor, but the weight it attracts lies within the sentencing judge's discretion and may properly be assessed as minimal given the circumstances of the case.
  • In assessing manifest excess, an appellate court focuses on the aggregate sentence rather than individual indicative sentences; an indicative sentence that appears high will not necessarily render the aggregate sentence excessive when all relevant factors are weighed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5A), 25AA, 44(2B), 47(2)(a)
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 61E(1A), 80, 81, 81A

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- JL v R [2023] NSWCCA 99
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Kerr v R [2016] NSWCCA 218
- Lonsdale v R [2020] NSWCCA 267
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Baker [2000] NSWCCA 85
- R v Dennis (Court of Criminal Appeal (NSW), 14 December 1992, unrep)
- R v Knight [2005] NSWCCA 241; (2005) 155 A Crim R 252
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Nightingale [2005] NSWCCA 147
- R v Obbens [2022] NSWCCA 109
- R v Spiers [2008] NSWCCA 107
- R v Todd [1982] NSWLR 517
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21