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Court of Criminal Appeal 8 November 2023

R v RJ

[2023] NSWCCA 273

Sexual offencesPublic order & justice offences

Citation: R v RJ [2023] NSWCCA 273
Court: NSW Court of Criminal Appeal
Date: 8 November 2023
Judges: Adamson JA; Basten AJA and Sweeney J

Background

The respondent was convicted following two separate judge-alone trials of 19 offences, the great majority of which were serious sexual offences committed against his biological daughter when she was aged between 12 and 15. The offending included repeated penile-anal penetration and forced fellatio, committed under significant aggravating circumstances and without any plea of guilty or meaningful mitigating factors.

The respondent was also convicted of soliciting his wife to persuade the victim to withdraw her complaint (an offence under s 319 of the Crimes Act 1900 (NSW), which prohibits acts done with intent to pervert the course of justice) and of breaching an Apprehended Domestic Violence Order (ADVO) that had been made to protect both the victim and her mother. These offences were committed while the respondent was on bail and subject to the ADVO.

In February 2023, the sentencing judges imposed an aggregate sentence of 12 years' imprisonment with an 8-year non-parole period for the 19 offences, and a separate sentence of 2 years' imprisonment with a 16-month non-parole period for the s 319 and ADVO offences. The Crown appealed both sentences on the ground of manifest inadequacy under s 5D of the Criminal Appeal Act 1912 (NSW).

  • Whether the aggregate sentence of 12 years for 19 offences (predominantly serious child sexual offences) was manifestly inadequate.
  • Whether the sentences imposed for the s 319 offence and the breach of the ADVO were manifestly inadequate or otherwise infected by error.
  • Whether the Court should exercise its residual discretion to decline to intervene and re-sentence, notwithstanding any finding of manifest inadequacy.
  • What the appropriate re-sentence should be if intervention was warranted.

Decision

Aggregate sentence for sexual offending: All three judges agreed that the aggregate sentence was manifestly inadequate. The sentencing judge's indicative sentences for individual counts were so low as to suggest he had not properly engaged with the relevant legislative guideposts, specifically the maximum penalties and standard non-parole periods, having regard to the objective seriousness of the conduct. The absence of any plea of guilty, the absence of remorse or contrition, and the presence of substantial aggravating factors compounded the error.

Sentences for the s 319 and ADVO offences: The Court divided on this issue. Basten AJA and Sweeney J (the majority on this point) found the individual sentences were lenient but not manifestly inadequate. They held, however, that imposing the sentences wholly concurrently was an error of principle, because even modest offending of this kind requires some accumulation to reflect the separate criminality of each offence. Adamson JA dissented, finding the s 319 sentence manifestly inadequate given that the respondent had used his wife to pressure the victim while on bail and in breach of an ADVO designed to protect her.

Residual discretion: The Court declined to exercise its residual discretion to withhold intervention. The aggregate sentence for the sexual offending was so far below an acceptable range as to amount to an affront to the proper administration of justice. The Court also noted that much of the delay between the original offending and the appeal had been caused by steps taken by the respondent himself, including obtaining counsel of his choice and resolving pre-trial matters.

Re-sentencing: The majority restructured the sentences, imposing a modest element of accumulation for the ADVO and s 319 offences and substantially increasing the aggregate sentence for the sexual offending. The new overall effective sentence was 17 years' imprisonment with a non-parole period of 12 years and 6 months.

Orders Made

  • The appeal was allowed.
  • The aggregate sentence imposed by Mahony SC DCJ on 10 February 2023 and the sentences imposed by Neilson DCJ on 24 February 2023 were set aside.
  • In lieu thereof, the following sentences were imposed:
  • For the breach of the ADVO: a fixed term of 9 months commencing 9 November 2019 and expiring 8 August 2020.
  • For the s 319 offence: 2 years' imprisonment with a non-parole period of 1 year and 4 months, commencing 9 February 2020 and expiring 8 February 2022 (non-parole period expiring 8 June 2021).
  • For the offences sentenced by Mahony SC DCJ: an aggregate sentence of 16 years' imprisonment with a non-parole period of 11 years and 6 months, commencing 9 November 2020 and expiring 8 May 2032, with a balance of term of 4 years and 6 months expiring 8 November 2036.
  • The overall effective sentence is 17 years' imprisonment commencing 9 November 2019 and expiring 8 November 2036, with a non-parole period of 12 years and 6 months expiring 8 May 2032.

Key Takeaways

  • Indicative sentences in an aggregate sentencing exercise must engage properly with maximum penalties and standard non-parole periods in light of objective seriousness; failure to do so can infect the aggregate sentence with manifest inadequacy even where the aggregate figure is not the mechanical sum of its parts.
  • Where separate offences arise from distinct criminal acts, even concurrent sentences of modest length require some element of accumulation to reflect the independent criminality of each offence.
  • A finding that a sentence is manifestly inadequate does not automatically produce re-sentencing: the Court of Criminal Appeal will consider its residual discretion. However, where the inadequacy amounts to an affront to the administration of justice, the discretion will not ordinarily be exercised in the respondent's favour.
  • Delay between original charging and a Crown sentence appeal may be relevant to the residual discretion, but the Court of Criminal Appeal indicated that delay attributable to a respondent's own conduct carries less weight in that analysis.
  • Attempting to pervert the course of justice by pressuring a victim to withdraw a complaint, while on bail and in breach of an ADVO, is treated as serious conduct warranting accumulation with other sentences, even if the individual term is short.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61M, 66C, 166, 319
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A, 54A, 54B

Cases:
- Allen v R [2008] NSWCCA 11; (2008) 180 A Crim R 428
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23
- Pearce v The Queen (1998