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Court of Criminal Appeal 17 November 2023

Melville v R

[2023] NSWCCA 284

Sexual offences
CRIME APPEAL AGAINST SENTENCE DAUGHTERS TOTALITY QUESTION OF EXTRA CURIAL PUNISHMENT

Citation: Melville v R [2023] NSWCCA 284
Court: Court of Criminal Appeal
Date: 17 November 2023
Judges: Leeming JA, Davies J, Wilson J

Background

The appellant had been convicted in Western Australia of 31 counts of rape, indecent assault, and sexual penetration without consent against two stepdaughters, spanning many years. The Western Australian Court of Appeal, following a successful Crown appeal, imposed an aggregate sentence of ten years imprisonment. The appellant served approximately seven and a half years in custody under that sentence before being released on parole.

The New South Wales proceedings concerned separate but related offending against the same two complainants, committed in New South Wales in approximately 1983 to 1984 (older stepdaughter) and 1987 (younger stepdaughter). Three days before his NSW trial was due to commence, the appellant pleaded guilty to two counts: carnal knowledge by a stepfather of a girl aged between 10 and 17, and sexual intercourse without consent. Four further counts of sexual intercourse without consent were taken into account on two Form 1 documents. The sentencing judge in the District Court imposed an aggregate sentence of three years imprisonment with a non-parole period of two years.

The appellant sought leave to appeal against that sentence in the Court of Criminal Appeal, raising three grounds: that the sentencing judge had impermissibly treated separate interstate offending as an aggravating factor; that the judge had erroneously rejected a claim of extra-curial punishment; and that the sentence was manifestly excessive.

  • Whether the sentencing judge impermissibly treated the Western Australian offending, or the Form 1 offences, as aggravating features when assessing the objective seriousness of the two NSW counts.
  • Whether the sentencing judge erred in finding that the appellant had not been subjected to extra-curial punishment warranting a reduction in sentence.
  • Whether the aggregate sentence of three years with a two-year non-parole period was manifestly excessive, having regard to the prior Western Australian sentence and the totality principle.

Decision

Ground 1: Aggravation by reference to separate offending

The Court found no error in the sentencing judge's approach. Although the remarks on sentence contained a single reference to the broader course of abuse as "aggravating," the Court read the judgment as a whole and concluded that the judge was not treating the Western Australian offending or the Form 1 offences as factors increasing the gravity of the charged counts. Rather, the wider course of conduct was relevant to negate any suggestion that the NSW offending was opportunistic, and to guide the court's application of totality principles when calibrating the NSW sentence against the punishment already served in Western Australia.

Ground 2: Extra-curial punishment

The appellant pointed to public exposure and disruption to his life following the commencement of proceedings as constituting extra-curial punishment. The Court rejected that argument. It confirmed the established principle that public denunciation commonly following the commission of crime, and the ordinary disruption that flows from criminal proceedings, do not constitute extra-curial punishment without more. Only a serious detriment beyond those ordinary consequences will qualify. The evidence advanced fell short of that threshold.

Ground 3: Manifest excess

Leeming JA and Wilson J each addressed this ground in separate reasons. The Court noted two significant features of the Western Australian sentence relevant to the totality analysis. First, the appellant had served approximately seven and a half years in custody under that sentence, meaning the combined custodial time across both jurisdictions would reach approximately nine years and six months. Second, the Western Australian Court of Appeal had itself acknowledged that the sentence imposed on the Crown appeal was somewhat less than what would otherwise have been appropriate, given the double jeopardy principle applicable at that time. The NSW sentence was substantially ameliorated to account for that prior punishment and the staleness of the NSW proceedings. The Court held that any lesser sentence would have paid inadequate attention to the gravity of the offences, which involved sustained sexual abuse of two children by a stepfather in a position of trust.

Orders Made

  • Leave to appeal against the sentence imposed on 16 December 2022: granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge may consider an offender's broader course of criminal conduct, including interstate offending, when addressing totality, without that consideration constituting impermissible aggravation of the charged offences, provided the judgment is read as a whole and the distinction is maintained.
  • Public denunciation and ordinary life disruption arising from criminal proceedings do not constitute extra-curial punishment warranting sentence reduction. Only a serious detriment beyond those ordinary consequences will qualify.
  • Where an offender has already served a substantial custodial sentence in another jurisdiction for related offending against the same victims, the totality principle requires the NSW sentencing court to ameliorate the NSW sentence accordingly, applying the principles in Mill v The Queen (1988) 166 CLR 59.
  • Proportionality remains a non-negotiable constraint: even where significant mitigation exists, a sentence must still adequately reflect the gravity of the offending, and courts cannot reduce a sentence to a level inconsistent with that obligation.
  • The double jeopardy discount applicable to Crown appeals in both Western Australia and New South Wales (at the relevant time) meant that the interstate sentence had itself been moderated, a factor the Court of Criminal Appeal took into account when assessing whether the NSW sentence was truly ameliorated to the greatest permissible extent.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1), 73
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 33
- Crimes (Appeal and Review) Act 2001 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Criminal Code 1913 (WA)
- Sentence Administration Act 1995 (WA)
- Sentence Administration Act 2003 (WA)
- Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Cases
- Mill v The Queen (1988) 166 CLR 59
- Todd v R [1982] 2 NSWLR 517
- R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398
- Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593
- Kenny v R [2010] NSWCCA 6
- VIM v State of Western Australia [2005] WASCA 223
- DPP v Ellis (2005) 11 VR 287; [2005] VSCA 105
- R v Reyes [2005] NSWCCA 218
- R v Geddes (1936) SR (NSW) 554
- R v Dodd (unreported, 4 March 1991, NSWCCA)
- Rushby [1977] 1 NSWLR 594
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- The Queen v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1