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18
Court of Criminal Appeal 30 November 2023

R v MJ

[2023] NSWCCA 306

Sexual offencesDomestic & family violence
CRIMINAL LAW CROWN APPEAL OFFENCE ON FORM 1 RESIDUAL DISCRETION RESENTENCE ASSESSMENT OF OBJECTIVE SERIOUSNESS

Citation: R v MJ [2023] NSWCCA 306
Court: Court of Criminal Appeal, New South Wales
Date: 30 November 2023
Judges: Simpson AJA; Price J; Davies J

Background

The respondent pleaded guilty in the District Court to one count of sexual intercourse with a child aged 10, contrary to s 66C(1) of the Crimes Act 1900 (NSW). A second related offence under s 66DD(a) was taken into account on a Form 1. The offending occurred on 21 February 2022, when the respondent sexually assaulted the 10-year-old daughter of his domestic partner.

On the same day as the assault, the respondent was arrested for unrelated domestic violence offences against his partner. He was later sentenced in the Local Court for those offences to 40 months' imprisonment with a non-parole period of 22 months, commencing 21 February 2022.

In the District Court, the respondent was sentenced on 19 May 2023 to 3 years' imprisonment with a non-parole period of 2 years for the child sexual assault, incorporating a 25% discount for an early guilty plea. The sentence commenced on 11 September 2022, producing a high degree of concurrency with the domestic violence sentence. The Director of Public Prosecutions appealed on the sole ground that the sentence was manifestly inadequate.

  • Whether the District Court sentence was manifestly inadequate, either in isolation or when assessed against the degree of concurrency with the existing domestic violence sentence
  • Whether the sentencing judge had adequately considered specific deterrence, protection of the community, and denunciation
  • Whether the sentencing judge erred in the use of Judicial Information Research System (JIRS) statistics
  • Whether the sentencing judge erred in fixing the commencement date of the sentence, having failed to apply the totality principle correctly
  • Whether the residual discretion to decline to intervene should be exercised in favour of the respondent
  • On resentencing: the relevance of the respondent's deprived background, including whether a causal link between that background and the offending is required under the Bugmy principles

Decision

The Court of Criminal Appeal unanimously found that the sentence was manifestly inadequate and allowed the Director's appeal. The sentencing judge had failed to give sufficient weight to specific deterrence, denunciation, and protection of the community. Although the respondent's deprived upbringing and mental health legitimately reduced moral culpability and moderated the weight given to general deterrence, those factors did not justify overlooking the other sentencing purposes entirely.

The Court also found that the sentencing judge had erred in applying the totality principle. Before accepting a submission about the commencement date of the sentence, the judge was required to step back and assess the total effective sentence as a just and appropriate measure of the overall criminality. That step was not taken, producing a sentence that was inadequate when the full picture was considered.

On the residual discretion, the Court found no basis to decline to intervene. The Court then resentenced the respondent, assessing the objective seriousness of the principal offence as above the mid-range. The Form 1 matter warranted greater weight on specific deterrence and retribution. A causal link between the respondent's deprived background and the offending was accepted on the evidence, and his reduced moral culpability and mental health continued to moderate the weight attributed to general deterrence.

Simpson AJA wrote separately on the Bugmy principles, concluding that the question of whether a specific causal link must be established between childhood deprivation and the offence in question is apt to mislead. In her Honour's view, the relevant connection is between a dysfunctional background and an offender's impaired socialisation and capacity to conform to social norms, not between the background and any particular offence. To require a direct causal link between the deprivation and the specific offending risks bypassing the broader and more fundamental insight recognised in Bugmy.

Orders Made

  • Director's appeal allowed
  • The sentence imposed by the District Court on 19 May 2023 is quashed
  • The respondent is resentenced to 6 years' imprisonment, comprising a non-parole period of 4 years commencing 21 December 2023 and expiring 20 December 2027, with a balance of term of 2 years commencing 21 December 2027 and expiring 20 December 2029
  • Earliest eligible parole date: 20 December 2027

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's recognition that childhood deprivation reduces moral culpability and moderates general deterrence does not permit the effective disregard of specific deterrence, denunciation, and protection of the community.
  • Proper application of the totality principle requires the sentencing judge to step back and assess the total effective sentence as a just and appropriate measure of the overall criminality before fixing a commencement date that produces significant concurrency.
  • Simpson AJA's separate reasons develop the Bugmy principles by cautioning against a requirement for a direct causal link between a deprived background and the specific offence charged. The deeper connection identified in Bugmy is between deprivation and an offender's impaired capacity to mature, develop values, and conform to social norms.
  • The original sentence of 3 years (non-parole period 2 years) was replaced on resentencing with 6 years (non-parole period 4 years), reflecting the above-mid-range objective seriousness of the offence and the aggravating effect of the Form 1 matter.
  • Where a Crown appeal against manifest inadequacy succeeds, the residual discretion to decline to intervene will not be exercised merely because mitigating factors exist; those factors were already weighed in the resentencing exercise itself.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C(1), 66DD(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA(3)
- Criminal Appeal Act 1912 (NSW), s 5D
- Mental Health Act 2007 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DR v R [2022] NSWCCA 151
- Perkins v R [2018] NSWCCA 62
- R v Irwin [2019] NSWCCA 133
- Katsis v R [2018] NSWCCA 9
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v R; Jones v R (2010) 242 CLR 250; [2010] HCA 45
- CMB v Attorney General for New South Wales [2015] HCA 9
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Millwood [2012] NSWCCA 2
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 181
- Ross v R [2012] NSWCCA 161
- Hoskins v R [2021] NSWCCA 169
- Lloyd v R [2022] NSWCCA 18