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Court of Criminal Appeal 30 June 2023

AJ v R

[2023] NSWCCA 158

Sexual offences
CRIME APPEAL APPEAL AGAINST SENTENCE MULTIPLE CHILD SEXUAL OFFENCES RANGE OF OBJECTIVE SERIOUSNESS APPEAL ALLOWED

Citation: AJ v R [2023] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 30 June 2023
Judges: Simpson AJA; Button J; Hamill J

Background

The applicant, referred to as "AJ" to protect the victims, pleaded guilty in the District Court to eight child sexual offences committed against his two natural children, both of whom had intellectual disabilities. Six offences were dealt with substantively, including counts of indecent assault and aggravated sexual assault, with two further offences taken into account on Forms 1. The offending occurred while the children were in his care and represented a grave breach of parental trust.

On 27 August 2020, the sentencing judge imposed an aggregate head sentence of 17 years 11 months, with a non-parole period of 11 years 8 months. A 10% discount was applied to the indicative sentence starting points to reflect the utilitarian value of the applicant's late guilty plea.

The applicant sought leave to appeal, arguing that the starting points adopted for two of the indicative sentences were erroneously close to the applicable maximum penalties, and that this error infected the aggregate sentence.

  • Whether grounds of appeal directed at an aggregate sentence, on the basis of alleged errors in the underlying indicative sentences, are available under the statutory aggregate sentencing regime.
  • Whether the sentencing judge erred by adopting starting points for counts 1 and 3 that were only two months below the respective maximum penalties, given findings that the offending was at or below the mid-range of objective seriousness.
  • Whether the aggregate sentence of 17 years 11 months was manifestly excessive as a result of that alleged error.

Decision

The Court confirmed, applying Davidson v R [2022] NSWCCA 153 and PG v R [2017] NSWCCA 179, that grounds of appeal attacking aggregate sentences on the basis of errors in indicative sentences are not prohibited. The statutory aggregate sentencing framework did not intend to restrict the types of appeal available, and such grounds remain open.

On the substance of the appeal, the Court accepted that the offending was undeniably serious. However, none of the sentencing judge's findings placed any individual offence above "just above the mid-range" of objective seriousness. Given that maximum penalties are reserved for the worst class of cases, starting points only two months below the maximum could not be reconciled with those findings through any instinctive synthesis of the objective and subjective circumstances.

The subjective case included significant mitigating factors: no prior criminal history, a finding of low to moderate risk of reoffending, good prospects of rehabilitation, some demonstrated insight and remorse, and the relevance of drug dependency to the commission of the offences (considered in the context of rehabilitation, not as a standalone mitigating factor). Taking all matters into account, the Court found the error in the indicative sentences had infected the aggregate term.

Exercising the sentencing discretion afresh, Button J (with Hamill J agreeing) imposed a reduced aggregate sentence, reflecting the totality of the offending while correcting the errors identified in the indicative starting points.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence upheld; aggregate sentence previously imposed quashed.
  • Applicant resentenced to an aggregate head sentence of imprisonment for 14 years, commencing 2 January 2019 and expiring 1 January 2033.
  • Non-parole period of 9 years, expiring 1 January 2028.
  • First eligible date for possible release to parole: 1 January 2028.

Key Takeaways

  • Grounds of appeal targeting an aggregate sentence on the basis of errors in indicative sentences remain available in the Court of Criminal Appeal; the aggregate sentencing regime does not foreclose such challenges.
  • A starting point only two months below a maximum penalty is inconsistent with a finding that the offending is at or below mid-range of objective seriousness, given the well-established principle that maximum penalties are reserved for the worst class of cases.
  • Where an error in indicative sentence starting points can be shown to have influenced the aggregate term imposed, that error provides a basis for intervention on appeal.
  • In resentencing, the Court reduced the aggregate head sentence from 17 years 11 months to 14 years, with the non-parole period reduced from 11 years 8 months to 9 years.
  • Subjective factors including the absence of prior criminal history, low-to-moderate reoffending risk, and good rehabilitation prospects remained relevant to the aggregate outcome even where the offending was found to be very serious.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 61O(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 53A(2)(b)

Cases
- BT v R [2010] NSWCCA 267
- Davidson v R [2022] NSWCCA 153
- House v The King (1936) 55 CLR 499
- Ibbs v The Queen (1987) 163 CLR 447
- JM v The Queen [2014] NSWCCA 297
- Kerr v R [2016] NSWCCA 218
- PG v R [2017] NSWCCA 179
- R v Rae [2013] NSWCCA 9
- R v Thomson; R v Houlton [2000] NSWCCA 309
- Sharma v R [2022] NSWCCA 190
- Truong v R [2013] NSWCCA 36
- Young v R [2021] NSWCCA 163