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8
Court of Criminal Appeal 26 July 2023

R v R E

[2023] NSWCCA 184

Sexual offences
CRIME APPEALS CROWN APPEAL AGAINST SENTENCE WHERE STRONG SUBJECTIVE CASE SENTENCE NOT MANIFESTLY INADEQUATE

Citation: R v R E [2023] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 26 July 2023
Judges: Stern JA; Fagan J; Yehia J

Background

A professional photographer was convicted by jury of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW) and one count of indecent assault under s 61L, committed against two separate young female models approximately six years apart. The first complainant was 17 years old at the time of the primary offending; the second was 26. Both offences occurred in professional photography contexts.

The District Court imposed an aggregate sentence of 2 years and 8 months with a non-parole period of 1 year and 1 month for the two sexual intercourse offences, and a 3-year community corrections order for the indecent assault. The respondent had been in custody from 11 November 2022, with an expected parole date of 10 December 2023.

The Director of Public Prosecutions appealed, contending that the sentencing judge had made errors in assessing the objective seriousness of the offences and that the sentences were manifestly inadequate.

  • Whether the sentencing judge erred in assessing the objective seriousness of the two sexual intercourse offences, specifically as to the respondent's motive and his state of mind regarding consent
  • Whether the sentencing judge erred by failing to resolve conflicting evidence about additional sexual touching during the commission of the first offence
  • Whether the aggregate sentence for the two sexual intercourse offences was manifestly inadequate
  • Whether the community corrections order for the indecent assault was manifestly inadequate

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's specific findings. The Crown argued two particular errors: one concerning the respondent's motive for the acts, and one concerning which of three alternative states of mind (under the former s 61HA(3) of the Crimes Act) the respondent held regarding non-consent. The Court held that the sentencing judge's conclusions on both points amounted to a finding that she was not satisfied beyond reasonable doubt of matters of aggravation, and that no error arose from that approach.

The Crown also argued the sentencing judge erred in failing to resolve a conflict in the first complainant's trial evidence about whether additional sexual touching had occurred during the first offence. The Court rejected this ground, noting that the Crown had not clearly required the judge to resolve that conflict at the sentence hearing, and no error arose from her not doing so. Further, the Court rejected the broader contention that the sentencing judge had made an incorrect overall assessment of objective seriousness, finding that her remarks on sentence fully exposed all relevant circumstances and that an alleged error could not be inferred merely from the label she used to place the offending on a notional scale.

On the second and third grounds, the Court acknowledged the aggregate sentence was lenient and that the non-parole period, at approximately 40% of the head sentence, was generous. However, it found the sentence was not manifestly inadequate given the respondent's strong subjective case and, critically, his serious ill health. The respondent had been undergoing cancer treatment at the time he was remanded in custody, and for the four months of his pre-sentence remand Justice Health had failed to address urgent clinical requirements to monitor that treatment. The Court expressed pointed concern about this failure, noting that even if it had found the sentence inadequate, it would have declined to increase it in light of the further delay in essential medical care after the District Court proceedings.

The community corrections order for the indecent assault was similarly upheld as falling within the legitimate exercise of the sentencing judge's discretion, having regard to all objective and subjective features of the case.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • No error arose from a sentencing judge declining to make a finding of aggravation where she was not satisfied beyond reasonable doubt of the matters supporting it, even in a Crown appeal context.
  • Where conflicting evidence about an aspect of the offending was not clearly pressed before the sentencing judge for resolution, the judge did not err by leaving that conflict unresolved.
  • An apparent error in the label a sentencing judge applies to offending on a notional scale of seriousness does not demonstrate error in the overall assessment of objective gravity, provided the remarks on sentence otherwise fully address the relevant circumstances.
  • A sentence that is lenient, or that features a generous non-parole period, will not necessarily be manifestly inadequate where the subjective case is strong and where serious ill health makes custody significantly more onerous for the offender than for other prisoners.
  • In dismissing the appeal, the Court of Criminal Appeal expressed concern about Justice Health's failure to provide adequate cancer monitoring during the respondent's remand period, and indicated it would have exercised its discretion not to increase any sentence in light of that ongoing failure.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61H, 61HA(3), 61I, 61L

Cases:
- Brierley v R [2022] NSWCCA 26
- R v Ibrahim [2021] NSWCCA 296
- Saffin v R [2020] NSWCCA 246
- Tepania v R [2018] NSWCCA 247