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Court of Criminal Appeal 9 June 2023

Younan v R

[2023] NSWCCA 124

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE NO ERROR NOT MANIFESTLY EXCESSIVE

Citation: Younan v R [2023] NSWCCA 124
Court: Court of Criminal Appeal, New South Wales
Date: 9 June 2023
Judge(s): Hamill J, Lonergan J, Ierace J

Background

The appellant was a tennis coach in his early seventies who sexually offended against an 11 to 12-year-old girl in his care over a six-month period in the second half of 2019. The child's parents paid him to coach her, and he used sole-care travel arrangements connected with her tennis commitments to repeatedly abuse her. He manipulated the child into believing his conduct was appropriate and beneficial to her tennis development.

The appellant was charged with seventeen counts of sexual offending under s 66DB of the Crimes Act 1900 (NSW), covering both intentional sexual touching and intentional incitement of the child to sexually touch him. A further twelve similar offences involving the same child were taken into account on Form 1 certificates. He pleaded guilty to the first five counts in the Local Court, then offered to plead guilty to the remaining twelve counts shortly before a pre-recorded hearing of the complainant's evidence was scheduled to proceed.

In the District Court, Shead SC DCJ imposed an aggregate term of imprisonment of 6 years and 6 months, with a non-parole period of 4 years and 3 months. The appellant sought leave to appeal against that sentence in the Court of Criminal Appeal on two grounds: that the sentencing judge erred in her finding regarding specific deterrence, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in her finding regarding specific deterrence
  • Whether the aggregate sentence of 6 years and 6 months (non-parole period of 4 years and 3 months) was manifestly excessive

Decision

Specific deterrence ground: The Court rejected the submission that the sentencing judge erred in her approach to specific deterrence. The judgment does not elaborate at length on this ground, but the Court accepted that no error of principle was established in the sentencing judge's treatment of it.

Role of Form 1 offences: Lonergan J adopted observations from Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 confirming that Form 1 offences can be taken into account on sentencing as demonstrating an additional need for personal deterrence and retribution in respect of the substantive indictment offences. The sentencing judge had assessed the objective seriousness of each indictable offence without reference to the Form 1 matters, treating those separately as relevant only to that additional need. The Court approved that approach.

Manifest excess ground: The Court found no error in the overall sentence. Lonergan J emphasised that sentencing is an instinctive and intuitive process and that intermediate courts of appeal afford real deference to sentencing judges at first instance. The Court described the offending in strong terms: repeated, skin-to-skin sexual contact involving the appellant's mouth, hands and penis; deliberate planning including sending other children away and deceiving the victim's mother; and calculated manipulation of a child too young and inexperienced to recognise the betrayal of her trust. All offences under s 66DB are inherently serious. The Court concluded that neither the minimum nor the maximum term was manifestly excessive, and noted the sentencing judge's finding of special circumstances (reflecting the appellant's mental health) was consistent with established principle.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that Form 1 offences do not increase the court's assessment of the objective seriousness of substantive offences; rather, they are relevant only to the additional need for personal deterrence and retribution, and may warrant a greater sentence for the principal offence on that basis.
  • No error was established in the sentencing judge's approach to specific deterrence, and the Court found no error of principle in the overall sentencing exercise.
  • An aggregate sentence of 6 years and 6 months for seventeen counts of child sexual offending under s 66DB of the Crimes Act 1900 (NSW), with twelve additional Form 1 offences, was not manifestly excessive on the facts, including a significant age disparity, a position of trust, repeated offending over six months, and deliberate manipulation of the child victim.
  • Sentencing is an instinctive and intuitive process, and the Court of Criminal Appeal pays real deference to the role of the sentencing judge at first instance, affording flexibility in determining the appropriate punishment (Nasrallah v R (2021) 105 NSWLR 451 applied).
  • A finding of special circumstances affecting the ratio of non-parole period to total sentence remains available where the sentencing court is satisfied of relevant factors such as the offender's mental health, consistent with the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66DB(a) and (b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 37

Cases:
- AK v R [2016] NSWCCA 238
- Aslan v R [2014] NSWCCA 114
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- House v King (1936) 55 CLR 499; [1936] HCA 40
- Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207