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Court of Criminal Appeal 17 November 2023

Hockley v R

[2023] NSWCCA 285

Sexual offences
CRIME SENTENCE GROOMING CHILD FOR SEXUAL ACTIVITY QUESTION OF MANIFEST EXCESS ABSENCE OF REMORSE OFFENDER WHO BLAMED 13 YEAR OLD VICTIMS

Citation: Hockley v R [2023] NSWCCA 285
Court: NSW Court of Criminal Appeal
Date: 17 November 2023
Judges: Mitchelmore JA, Rothman J, Wilson J (Wilson J delivered the principal judgment)

Background

The applicant, aged 33 at the time of the offences, used the Snapchat platform to contact three male complainants, each aged 13 years old. Over several weeks in late December 2020 and early January 2021, he engaged in sexually explicit communications with each child, produced child abuse material, and in one instance drove approximately 186 kilometres late at night to meet a complainant, whom he then sexually assaulted near the Nepean River.

The applicant pleaded guilty in the Local Court to five offences and was committed to the District Court for sentencing. Additional offences were placed before the sentencing court on Form 1 documents. Judge Beckett imposed an aggregate sentence of six years imprisonment with a non-parole period of three years and seven months. The indicative sentences reflected a 25 per cent discount for early guilty pleas.

The applicant sought leave to appeal on the basis that the sentence was manifestly excessive, and that the sentencing judge had failed adequately to account for the totality of the accumulated indicative sentences.

  • Whether the indicative sentences imposed for the grooming and "meet child" offences (sequences 2, 29 and 30) were manifestly excessive.
  • Whether the aggregate sentence failed to give proper effect to the totality principle in light of the accumulation of indicative sentences.
  • Whether the overall sentence was manifestly excessive in all the circumstances.

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach and dismissed the appeal. Wilson J, with whom Mitchelmore JA and Rothman J agreed, characterised the sentence as one that had in fact afforded the applicant considerable leniency, noting that the subjective case put forward on his behalf was contradictory and poorly supported by objective evidence.

The sentencing judge had accepted a psychological report and given it significant ameliorating weight, even though the applicant's account of his personal history bore little relationship to the complaint he separately lodged with NSW Corrective Services and police. Wilson J noted that the sentencing judge did not appear to have engaged with factual features that cast doubt on the reliability of the applicant's claims, including a report from a fellow inmate that the applicant had expressed an intention to fabricate an assault claim to achieve a better sentencing outcome.

The applicant had shown no remorse and, in handwritten documents tendered at sentence, had blamed his 13-year-old victims for what occurred. Despite this, the sentencing court treated the applicant as a "young offender" under the principles applicable to children and young people, even though he was 33 when he committed the offences and 35 at the time of sentence. Wilson J noted that giving substantially greater weight to rehabilitation in these circumstances may have reflected little more than a "pious hope," citing R v Carter [2003] NSWCCA 243.

Because the applicant had in fact received a lenient sentence, the Court found no basis to reduce it further. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal emphasised that a sentence that is lenient, even markedly so, cannot be set aside on the ground of manifest excess merely because the applicant argues it could have been lighter still.
  • A finding of special circumstances and a significantly varied non-parole ratio was upheld even in the absence of remorse, but the Court signalled serious reservations about the evidentiary basis on which the sentencing court extended leniency.
  • The principles applicable to sentencing children and young people, including the prioritisation of rehabilitation, do not automatically apply to an adult offender aged 33 simply because the court elects to treat him as a "young person."
  • Where a subjective case is internally contradictory and contradicted by other evidence before the sentencing court, significant reliance on that case to reduce a sentence may be susceptible to scrutiny on appeal, even where the appeal ultimately fails for other reasons.
  • Sufficient accumulation of indicative sentences is required to reflect the gravity of distinct offences committed against multiple victims; the aggregate sentence here was found to have achieved that, rather than to have over-accumulated.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), ss 66C, 66EB(2A), 66EB(3), 91H(2), 578A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Cahyadi v R [2007] NSWCCA 1
- Munro v R [2006] NSWCCA 350
- R v Carter [2003] NSWCCA 243
- R v Elfar [2003] NSWCCA 358
- R v McGourty [2002] NSWCCA 335
- R v Palu [2002] NSWCCA 381
- R v Qutami [2001] NSWCCA 353