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Court of Criminal Appeal 9 June 2023

AC v R

[2023] NSWCCA 133

Also reported as (2023) 111 NSWLR 514
Sexual offences
SENTENCING NON PAROLE PERIOD STANDARD NON PAROLE PERIOD CORRECT STANDARD NON

Citation: AC v R [2023] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 9 June 2023
Judges: Bell CJ, Beech-Jones CJ at CL, Adamson JA, Ierace J, Chen J

Background

The applicant was sentenced in the District Court in November 2020 after pleading guilty to nine historical child sexual abuse offences. Six of those offences were charges of indecent assault on a child under 10 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW), a provision since repealed. All six s 61M(2) offences were committed before 1 January 2008.

The sentencing judge applied a standard non-parole period (SNPP) of 8 years to those offences, resulting in an aggregate sentence of 10 years' imprisonment with a non-parole period of 7 years and 6 months. The applicant sought leave to appeal on the basis that the correct SNPP was 5 years, not 8 years, and that the sentencing judge wrongly found he had not expressed remorse.

The SNPP question arose from a legislative tangle. At the time of the offences, the SNPP for s 61M(2) was 5 years. From 1 January 2008, it was raised to 8 years with express retrospective effect. Then in 2018, s 25AA(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) was introduced, providing that the applicable SNPP for child sexual offences is the one that applied "at the time of the offence, not at the time of sentencing." A five-judge bench was convened because the Crown contended that the Court's earlier decision in GL v R [2022] NSWCCA 202, which had applied a 5-year SNPP in identical circumstances, was wrongly decided.

  • Whether the principles governing departure from previous decisions, as outlined in Gett v Tabet (2009) 109 NSWLR 1, applied to the statutory construction conclusion in GL v R.
  • Whether the ratio of GL v R extended to its statutory construction finding, given that the appeal in that case was ultimately dismissed despite the error being identified.
  • What the correct SNPP was for s 61M(2) offences committed before 1 January 2008: 5 years (as the applicant contended) or 8 years (as the Crown contended).
  • Whether the sentencing judge erred in finding that the applicant had not expressed remorse.

Decision

The Gett issue: The majority (Bell CJ, Adamson JA, Ierace J, Chen J) held that the Gett v Tabet principles applied to the statutory construction conclusion in GL v R. An intermediate appellate court should not depart from its own previous decision unless it is plainly wrong and there are compelling reasons to do so. A subsequent bench simply taking a different view of a statutory provision does not satisfy that threshold.

The majority also rejected a narrow reading of what counts as ratio decidendi for these purposes. Where a conclusion of law was fully argued, treated by the earlier court as a necessary step in upholding a ground of appeal, and led to a re-exercise of sentencing discretion, it forms part of the ratio even if the appeal was ultimately dismissed through the exercise of a residual power. Beech-Jones CJ at CL assumed, without deciding, that the Gett principles applied.

The statutory construction issue: The majority held that s 25AA(2) of the CSPA prevails over cl 57 of Schedule 2 (the provision that gave the 2008 increase in SNPP its retrospective effect). Section 25AA(2) is later in time and expressed in unambiguous terms: the applicable SNPP is the one that existed at the time of the offence. For pre-2008 offences against s 61M(2), that SNPP was 5 years. The majority further found no necessary inconsistency between s 25AA(2) and cl 91 of Schedule 2, as those provisions serve different purposes: cl 91 confirms that the 8-year SNPP continues to apply to offences committed between 2008 and 2018, when s 61M was still in force. Beech-Jones CJ at CL dissented on this issue and would have held the correct SNPP was 8 years.

The remorse issue: All members of the bench agreed that the sentencing judge erred in finding that the applicant had not expressed remorse. The applicant's expressions of remorse were supported by the evidence.

Both grounds of appeal succeeded. The Court allowed the appeal, quashed the original sentence, and resentenced the applicant to an aggregate term of 7 years' imprisonment with a non-parole period of 5 years and 3 months.

Orders Made

  • Appeal allowed.
  • Original sentence quashed.
  • Applicant resentenced to an aggregate term of 7 years' imprisonment with a non-parole period of 5 years and 3 months.

Key Takeaways

  • For offences against s 61M(2) of the Crimes Act 1900 committed before 1 January 2008, the majority of the Court of Criminal Appeal confirmed that the applicable SNPP is 5 years, not 8 years, by reason of s 25AA(2) of the CSPA overriding the earlier retrospective provision in cl 57 of Schedule 2.
  • Section 25AA(2) of the CSPA, introduced in 2018, directs sentencing courts to apply the SNPP that existed at the time of the offence for child sexual offences; that provision, being later in time and clear in its terms, prevails over cl 57.
  • Clause 91 of Schedule 2 to the CSPA and s 25AA(2) are not inconsistent: cl 91 addresses the continuing application of the 8-year SNPP to offences committed between 2008 and the 2018 amendments, while s 25AA(2) addresses the position for offences committed before 2008.
  • Under the Gett v Tabet principles, an intermediate appellate court requires more than a different view of legislation before departing from a previous decision; the earlier decision must be shown to be plainly wrong, and there must be compelling reasons to depart.
  • For the purposes of the Gett principles, the ratio of a previous decision generally includes a legal conclusion that was fully argued and treated as a necessary step in resolving a ground of appeal, even where the appeal was ultimately dismissed through a residual discretion rather than by denying the error.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25AA, 33, 44, 54A(2), 54B(5), Sch 2, cll 57, 60, 91
- Crimes Act 1900 (NSW), s 61M (now repealed)
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes Amendment (Sexual Offences) Act 2008 (NSW)
- Interpretation Act 1987 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Key Cases:
- Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76
- GL v R [2022] NSWCCA 202
- Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
- Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15
- Shergold v Tanner