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Court of Criminal Appeal 7 July 2023

Clarke v R

[2023] NSWCCA 170

Sexual offences
CRIME APPEAL SENTENCE APPEAL RANGE OF OBJECTIVE SERIOUSNESS FINDING OF MID GROUNDS OF APPEAL DISMISSED.

Citation: Clarke v R [2023] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 7 July 2023
Judges: Beech-Jones CJ at CL, McNaughton J (leading judgment), R A Hulme AJ

Background

The applicant was convicted following a judge-alone trial in the District Court of three counts of sexual offending against two young children, aged six or seven and four years respectively, committed during 2016. The children were the grandchildren of a neighbour with whom the applicant was friendly, giving him regular access to their company. His offending included digital penetration and indecent assault, carried out despite the older child's repeated verbal protests.

The applicant was sentenced to an aggregate term of 12 years' imprisonment with a non-parole period of 8 years. The sentence followed a retrial: the original trial before a different judge had resulted in the same aggregate sentence, though that judge had assessed the offending as falling below the mid-range of objective seriousness. The applicant successfully appealed his original convictions and was retried before Bennett SC DCJ, who assessed all three offences as falling within the mid-range of objective seriousness.

The applicant sought leave to appeal against sentence, raising two grounds: that the mid-range assessment was wrong, and that the sentence was manifestly excessive. Leave was granted out of time, no delay being attributable to the applicant's current lawyers.

  • Whether the sentencing judge erred in finding that each offence fell within the mid-range of objective seriousness
  • Whether the aggregate sentence of 12 years' imprisonment with an 8-year non-parole period was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found the mid-range assessment was open to the sentencing judge. McNaughton J noted that sexual offences against very young children are inherently serious, and that the absence of physical violence or overt threats carries minimal mitigating weight. The applicant's relative size, maturity, and verbal authority over the children provided sufficient leverage without requiring force. The offending also involved a clear abuse of trust, was not isolated, and, in the case of the older complainant, continued despite her explicit objections.

On the second ground, the Court rejected the submission that the sentence was manifestly excessive. McNaughton J observed that the maximum penalty for the section 66A(1) offences (sexual intercourse with a child under 10) is life imprisonment, reflecting the extreme seriousness with which Parliament regards this category of offending. The principles of general deterrence, denunciation, and community protection must be properly reflected in sentences for child sexual abuse.

The Court also considered sentencing statistics and the comparative cases relied upon by the applicant. It found that a significant proportion of sentences for these offence types were at least as heavy as the indicative sentences imposed in this case. The comparative cases had materially different, and more favourable, features (including an offender who stopped when asked and had a compelling subjective case), and could not establish that the present sentence was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a mid-range assessment of objective seriousness for child sexual offending was open where the victims were very young, there was an abuse of trust, the offending was not isolated, and it continued in the face of the victim's protests.
  • The absence of physical violence or threats is of minimal relevance when sentencing for sexual offending against young children, given the inherent power imbalance arising from the offender's size, maturity, and authority.
  • Under section 66A(1) of the Crimes Act 1900 (NSW), the maximum penalty of life imprisonment signals the gravity with which Parliament views sexual intercourse with children under 10, and sentences must properly reflect general deterrence, denunciation, and community protection.
  • Comparative sentencing cases are a guide rather than a fixed range: a small selection of cases with materially different features cannot establish that a sentence is unreasonable or plainly unjust, consistent with the High Court's approach in Hili v The Queen; Jones v The Queen.
  • No appellate error was established in the sentencing judge's approach, and the aggregate sentence was not shown to be unreasonable or plainly unjust.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 5
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- R v BA [2014] NSWCCA 148
- Chamseddine v R [2017] NSWCCA 176
- Fuller v R [2022] NSWCCA 203
- Adam Jolly v R [2013] NSWCCA 76
- Magro v R [2020] NSWCCA 25
- Lees v R [2019] NSWCCA 65
- Hughes v R [2018] NSWCCA 2
- Imbornone v R [2017] NSWCCA 144
- Cowling v R [2015] NSWCCA 213
- PWB v R [2011] NSWCCA 84
- MH v R [2011] NSWCCA 230
- Bonwick v R [2010] NSWCCA 177
- Corby v R [2010] NSWCCA 146
- R v Daley [2010] NSWCCA 223
- Mulato v R [2006] NSWCCA 282