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Court of Criminal Appeal 14 July 2023

PH v R

[2023] NSWCCA 176

Sexual offencesDomestic & family violence
19 GROUND — APPLICANT RESENTENCED

Citation: PH v R [2023] NSWCCA 176
Court: NSW Court of Criminal Appeal
Date: 14 July 2023
Judges: Simpson AJA, Rothman J, Cavanagh J (Cavanagh J delivered the principal judgment, with the others agreeing)

Background

The applicant pleaded guilty in the Dubbo District Court to one count of sexual intercourse with a child under 10 years of age, contrary to s 66A(1) of the Crimes Act 1900 (NSW), and four counts of contravening Apprehended Domestic Violence Orders (ADVOs), contrary to s 14(1) of the Crimes (Domestic & Personal Violence) Act 2007 (NSW). The sexual offending was committed between March 2016 and January 2017 against his stepdaughter, who was eight years old at the time. The applicant, then 27, was living in the family home with the victim, her mother, and three other children.

The ADVO offences related to electronic communications between February and June 2020. These included sending explicit images to the victim's mother by Snapchat, and later making contact with her in contravention of a second ADVO that had been made specifically for her protection.

The District Court sentenced the applicant to an aggregate term of eight years imprisonment with a non-parole period of five years, after applying a 25% discount for early guilty pleas. The applicant sought leave to appeal against that sentence on three grounds.

  • Whether the sentencing judge erred by failing to take into account the onerous impact of the COVID-19 pandemic on the conditions of the applicant's imprisonment.
  • Whether the sentencing judge erred in applying the "commission in the home" and "breach of trust" aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), either by failing to moderate their weight (on the basis that they were inherent in the offending) or by failing to give adequate reasons.
  • Whether the aggregate sentence was manifestly excessive.

Decision

The Crown conceded error on the first ground. The Court of Criminal Appeal confirmed that, because the sentencing judge's remarks contained no finding as to the general impact of COVID-19 on the conditions of the applicant's imprisonment, the Court was unable to determine whether that matter had been taken into account. That absence of reasoning was sufficient to establish error.

Having found error on ground one, the Court granted leave to appeal and resentenced the applicant without needing to determine whether grounds two and three were also made out.

On resentencing, the Court assessed the sexual offending as falling within the broad category of cases below the middle of the range of objective seriousness. The Court accepted that both the breach of trust and the commission of the offence in the victim's home were aggravating factors under ss 21A(2)(eb) and (k) of the CSP Act, and that while there may be some overlap between them, both factors were properly taken into account. The Court referred to Jonson v R [2016] NSWCCA 286 in support of that approach.

The Court accepted that the applicant's time in custody, from near the time of his entry into custody in February 2020 until 2023, had been made more onerous by COVID-19. It noted significant lockdowns, periods without shower access, time spent in maximum security, and a near-total absence of visitor access. The ADVO offences were assessed as falling toward the lower end of the range, given they involved no direct contact or threats. The Court also accepted special circumstances, noting the applicant's need for a longer parole period to address drug addiction and reintegrate into the community.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • In lieu thereof, the applicant was sentenced to imprisonment for 7 years with a non-parole period of 4 years and 2 months.
  • The applicant has been in custody since 21 February 2020, becomes eligible for parole on 20 April 2024, and his sentence expires on 20 February 2027.

Key Takeaways

  • A sentencing judge's failure to address the impact of COVID-19 on custodial conditions in the remarks on sentence constitutes a reviewable error, because the absence of any finding prevents an appellate court from determining whether the matter was considered at all.
  • Under ss 21A(2)(eb) and (k) of the Crimes (Sentencing Procedure) Act 1999 (NSW), both the "commission in the home" and "breach of trust" aggravating factors may be taken into account in the same case. The Court of Criminal Appeal confirmed, following Jonson v R, that some overlap between those factors does not preclude both from being applied.
  • Where COVID-19 error is conceded and the Court proceeds to resentence, it is not necessary to resolve the remaining grounds of appeal.
  • Resentencing in this matter resulted in an aggregate sentence of seven years imprisonment with a non-parole period of four years and two months, reduced from eight years and five years respectively, reflecting the COVID-19 conditions in custody.
  • Special circumstances were established, justifying an extended parole period relative to the custodial term, where the applicant required support for drug addiction and community reintegration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A(1)
- Crimes (Domestic & Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), (k); 25D(2)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Church v R [2012] NSWCCA 149
- Jonson v R [2016] NSWCCA 286
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- McKinnon v R [2020] NSWCCA 106
- PC v R [2022] NSWCCA 107