AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 27 November 2023

R v BH

[2023] NSWCCA 278

Sexual offences
CRIME APPEALS CROWN APPEAL AGAINST SENTENCE MANIFEST INADEQUACY RANGE AND ABOVE MID COURT MUST INTERVENE AND RESENTENCE

Citation: R v BH [2023] NSWCCA 278
Court: NSW Court of Criminal Appeal
Date: 27 November 2023
Judges: Davies J (leading judgment), Cavanagh J and Sweeney J agreeing

Background

The respondent, a biological father, was convicted by a jury of 14 counts of child sexual abuse committed against his daughter over a period of almost two years. The offences occurred across eight separate incidents when the complainant was aged between six and eight years. They included one count of indecent assault and 13 counts of sexual intercourse with a child under ten years, the latter carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The sentencing judge in the District Court imposed an aggregate sentence of 14 years' imprisonment with a non-parole period of nine years. Ten of the 14 offences were assessed by the sentencing judge as being at or above the mid-range of objective seriousness, with several involving the use of force.

The Director of Public Prosecutions appealed on a single ground: that the aggregate sentence was manifestly inadequate.

  • Whether the indicative sentences imposed for offences assessed as at or above the mid-range of objective seriousness were within the proper range for such offending.
  • Whether the aggregate sentence adequately reflected the totality of the criminality and the strong need for general deterrence.
  • Whether the Court of Criminal Appeal should intervene and resentence the respondent.

Decision

Davies J (with Cavanagh and Sweeney JJ agreeing) held that the indicative sentences for the offences at the mid-range and above were significantly below the appropriate range. For seven mid-range offences, the sentencing judge had specified non-parole periods of between six years six months and seven years six months. These figures were substantially below the standard non-parole period of 15 years, and the reasoning in the sentencing remarks could not explain the departure. Although the standard non-parole period is not the starting point for sentencing after a mid-range finding, the Court found that the indicative sentences were simply too low to be justified.

The Court placed considerable weight on the guidance recently provided in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81, which the Crown had drawn to the sentencing judge's attention in written submissions. A survey of comparable decisions confirmed that the indicative sentences imposed fell well outside the range of appropriate sentences for this type of offending.

The disconnect between the indicative sentences and the aggregate term was stark. The sum of all indicative sentences reached 94 years, with indicative non-parole periods approaching 60 years combined. Against that backdrop, an aggregate sentence of only 14 years with a nine-year non-parole period represented an excessive degree of accumulation that failed to reflect the true extent of the criminality. Critically, the aggregate head sentence was itself less than the standard non-parole period for a single count of sexual intercourse with a child under ten years. The Court described this outcome as an affront to the administration of justice, requiring intervention and resentencing.

On resentencing, the Court found special circumstances warranting a longer parole period, by reason of the respondent being in custody for the first time, his mental health conditions, and the hardship to his partner and her children. The Court rejected the submission that the non-parole period should not be increased on rehabilitation grounds, noting that rehabilitation programs would be available in custody and that adequate time for reintegration would remain during the parole period.

Orders Made

  • Appeal allowed.
  • Sentence imposed in the District Court on 30 June 2023 quashed.
  • Respondent resentenced to an aggregate term of 18 years' imprisonment commencing 17 February 2023 and expiring 16 February 2041, with a non-parole period of 12 years expiring 16 February 2035.
  • First eligible for parole on 16 February 2035.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where an aggregate head sentence for a course of child sexual abuse is itself lower than the standard non-parole period for a single count of the principal offence, that outcome constitutes an affront to the administration of justice warranting intervention.
  • Indicative sentences for offences assessed at or above the mid-range of seriousness must be consistent with the proper sentencing range; a significant departure below the standard non-parole period requires clear and discernible reasoning in the sentencing remarks.
  • Recent guidance in DPP (NSW) v TH [2023] NSWCCA 81 was applied as an authoritative reference point for appropriate sentence ranges in cases involving sexual intercourse with children under ten years, including where the Crown draws that decision to the sentencing judge's attention.
  • Applying the totality principle does not permit accumulation at a level so extreme that the resulting aggregate sentence fails to reflect the overall criminality of repeated, serious child sexual abuse across multiple incidents over an extended period.
  • A finding of special circumstances on resentencing remains available where factors such as first entry into custody, mental health conditions, and hardship to third parties are established, even where those factors do not operate to limit an increase in the non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M, 66A, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B

Key Cases
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Filippou v R [2013] NSWCCA 92
- Sinkovich v R [2014] NSWCCA 97
- TO v R [2017] NSWCCA 12; (2017) 265 A Crim R 191
- RH v R [2019] NSWCCA 64
- Facer (A Pseudonym) v The Queen [2019] NSWCCA 180; (2019) 279 A Crim R 156
- Merkel v R [2019] NSWCCA 212
- R v DN [2023] NSWCCA 39
- R v RJ [2023] NSWCCA 273
- DR v R [2022] NSWCCA 151
- Bravo v R [2015] NSWCCA 302
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45