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6
Court of Criminal Appeal 6 December 2023

Ocek v R

[2023] NSWCCA 308

Sexual offencesPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE APPEALS APPEAL AGAINST SENTENCE CURIAL PUNISHMENT CRIME

Citation: Ocek v R [2023] NSWCCA 308
Court: NSW Court of Criminal Appeal
Date: 6 December 2023
Judge(s): Ward P, Stern JA, N Adams J (N Adams J delivered the principal judgment; Ward P and Stern JA agreed)

Background

The applicant pleaded guilty to 38 offences against 11 separate victims, spanning both Commonwealth and State legislation. The offending involved the applicant contacting victims through social media while posing as a teenage male. Victims were predominantly aged 12 to 14 years old. The offences included persistent sexual abuse of a child, production of child abuse material, grooming, sexual intercourse with a child aged between 14 and 16, and related offences involving demands with menaces and failure to comply with reporting conditions.

At first instance, Tupman DCJ sentenced the applicant in the NSW District Court in April 2018 to an effective term of 20 years imprisonment with a non-parole period of 15 years, commencing 24 July 2014. By the time of the CCA hearing, the applicant had served over nine years of his non-parole period.

The applicant sought leave to appeal out of time, raising 11 grounds challenging the sentence on a wide range of bases.

  • Whether a misstatement in the sentencing remarks (understating a prior sentence) meant the sentencing judge proceeded on an incorrect factual basis with the capacity to influence the outcome
  • Whether assaults suffered by the applicant while in custody constituted extra-curial punishment warranting mitigation of sentence
  • Whether delays in the police forensic examination of devices amounted to a mitigating factor
  • Whether events occurring after sentencing (including the COVID-19 pandemic and a subsequent custody assault) could ground a sentencing error
  • Whether the sentencing judge erred in a factual finding about the chronology of the offending
  • Whether the sentencing judge failed to take into account relevant material, including evidence of the applicant's difficult childhood
  • Whether the sentencing judge's expressed frustration at the way charges were brought affected the exercise of her sentencing discretion
  • Whether initial charges brought under the wrong legislative provision, and subsequent conduct by lawyers and the ODPP in the charge negotiation process, caused a miscarriage of justice
  • Whether lawyers acted incompetently by advising the applicant not to tender certain Facebook conversation records
  • Whether individual indicative sentences, and the overall effective sentence, were manifestly excessive

Decision

Misstatements and factual errors in sentencing remarks: The court found that an understatement of a prior sentence in one part of the remarks did not establish that the judge proceeded on an incorrect basis overall. Even if such an error occurred, it lacked the capacity to influence the sentences imposed. Similarly, a suggested error about the chronology of offending (the timing of first actual sexual contact after the applicant's release from custody) was not borne out when the reasons were read as a whole, and in any event would not have had the capacity to influence sentence.

Custody assaults and extra-curial punishment: The court held that the assaults in custody could not be treated as extra-curial punishment warranting mitigation. The evidence was not placed before the sentencing judge in the context of the sentence proceedings; it was only raised later in connection with a non-publication application. Critically, no material established that the assaults were caused by these specific offences, which is a prerequisite for the extra-curial punishment principle to apply. Post-sentencing events, including a further assault in May 2022 and the effects of the COVID-19 pandemic, could not ground a sentencing error because they had not occurred at the time of sentencing.

Police delay and factual findings: Delay in the forensic examination of devices, where the only consequence was a period of uncertainty for the applicant, did not constitute a mitigating factor. The court also upheld the sentencing judge's factual findings about the applicant's difficult childhood. Her Honour had expressly referred to much of the relevant material and stated she had read and taken into account all documents tendered, even those not explicitly mentioned in the reasons.

Counsel competency, charge negotiation, and manifest excess: The court rejected all grounds relating to conduct by the applicant's former lawyers and the ODPP. Initial charges brought under the wrong section were withdrawn, causing no miscarriage. The applicant did not establish that he was improperly pressured to sign agreed facts, nor that advice against tendering Facebook conversation records was incompetent. On the question of manifest excess, the court found that individual indicative sentences for counts involving sexual intercourse with a child aged 14 to 16 were not excessive given the scope of the offending. Considering the totality principle and the 38-count indictment, the overall effective sentence was not plainly unjust.

Orders Made

  • Extension of time to bring the appeal granted
  • Leave to bring the appeal granted
  • The appeal dismissed

Key Takeaways

  • A factual misstatement in sentencing remarks does not constitute a ground of appeal unless it can be shown both that the judge proceeded on an incorrect basis and that the error had the capacity to influence the sentences imposed.
  • For assaults suffered in custody to qualify as extra-curial punishment, the evidence must be placed before the sentencing court at the sentencing hearing, and there must be a sufficient causal nexus between the assaults and the specific offences for which the offender is being sentenced.
  • Post-sentencing events, including health impacts from the COVID-19 pandemic and subsequent custody incidents, cannot establish error in a sentence that was correct at the time it was imposed.
  • In dismissing the manifest excess grounds, the Court of Criminal Appeal confirmed that complaints about individual indicative sentences in a large multi-count matter must be assessed in the broader context of the aggregate sentence and the totality principle. An arguably excessive indicative sentence on some counts does not, of itself, establish that the overall effective sentence is plainly unjust.
  • No miscarriage of justice arises from charges initially brought under the wrong legislative provision where those charges were subsequently withdrawn and the applicant could not demonstrate how the withdrawal of alternative counts rendered the sentencing process unfair.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 66C(1), 66C(3), 66EA(1), 66EB(2), 249K(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 1A, s 53A
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Child Protection (Offenders Registration) Act 2000 (NSW), s 12C
- Court Suppression and Non-Publication Orders Act 2010 (NSW)
- Mutual Assistance in Criminal Matters Act 1987 (Cth)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- Benn v R [2023] NSWCCA 24
- Melville v R [2023] NSWCCA 284
- Merheb v R [2021] NSWCCA 224
- Newman (a pseudonym) v R [2019] NSWCCA 157
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Azzopardi v R [2019] NSWCCA 306
- Hordern v R [2019] NSWCCA 138
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Elchiekh v R [2016] NSWCCA 225
- Clarke v R [2015] NSWCCA 232
- Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
- AB v R [2014] NSWCCA 339
- Ahmu v R [2014] NSWCCA 312
- Kees Langelaar v R [2016] NSWCCA 143
- Matthews v R [2013] NSWCCA 187
- Burr v The Queen [2020] NSWCCA 282