Citation: JG v R [2023] NSWCCA 33
Court: NSW Court of Criminal Appeal
Date: 3 March 2023
Judges: Simpson AJA, Davies J, Wilson J (dissenting in part)
Background
The applicant pleaded guilty in the Local Court to eight counts of sexual offending against four child victims, each a member of his extended family, together with one count of possessing child abuse material. He was sentenced in the District Court to an aggregate term of 17 years' imprisonment with a non-parole period of 12 years.
Two of the eight counts were the primary focus of the appeal. Count 4 involved the persistent sexual abuse of a male child aged 13 to 15 over a 15-month period, comprising 10 to 15 acts of sexual touching. Count 5 involved the persistent sexual abuse of a male child aged 12 to 14 over 39 months, across 10 incidents that escalated in seriousness and included grooming, the supply of alcohol on two occasions, and an implied threat to the victim not to disclose the abuse. Both counts were charged under s 66EA of the Crimes Act 1900 (NSW), which carries a maximum penalty of life imprisonment.
The sentencing judge assessed Count 4 as falling "just below the middle range" of objective seriousness, with an indicative sentence of 8 years, and Count 5 as above the midrange, with an indicative sentence of 11 years. The applicant sought leave to appeal against his sentence.
Legal Issues
- Whether the sentencing judge erred in his assessment of the objective seriousness of the two s 66EA offences (Counts 4 and 5), thereby inflating the aggregate sentence
- Whether the aggregate sentence was crushing
- Whether the aggregate sentence was manifestly excessive
- Whether the non-parole period was set incorrectly given that special circumstances had been found
Decision
The Court granted leave to appeal and, by majority, allowed the appeal on the first ground. Davies J (with Simpson AJA agreeing) found that the sentencing judge's assessments of objective seriousness for both counts fell outside the proper exercise of his discretion. Critically, the sentencing judge had not been provided with the relatively small body of comparable decisions from this Court that would have assisted him in calibrating those assessments. When those cases were examined, both the "just below midrange" finding for Count 4 and the "above midrange" finding for Count 5 were not reasonably open.
On the comparative case analysis, the majority found that far more serious offending than that involved in Counts 4 and 5 was required to justify an above-midrange finding. The majority also affirmed that the factors identified in Burr v R [2020] NSWCCA 282, which addressed the features relevant to s 66EA offending before that section was amended, remain important tools for assessing objective seriousness under the current provision.
Wilson J dissented on Ground 1. Her Honour held that an assessment of objective gravity is an evaluative exercise involving a broadly based discretion, and that a different or even significantly different view on appeal is insufficient, on its own, to warrant intervention. Wilson J considered that the sentencing judge carefully weighed the relevant features and reached a conclusion that was open to him. Her Honour also cautioned against what she described as an "artificial segmentation of a spectrum" when appellate arguments are framed around the language of sentencing ranges.
On Ground 4, all three judges agreed that while the sentencing judge had found special circumstances, the non-parole period as set did not adequately give effect to that finding. On re-sentencing, the majority imposed an aggregate sentence of 13 years' imprisonment with a non-parole period of 9 years. Grounds 2 and 3 (crushing sentence and manifest excess) were not separately made out, and the majority's intervention rested solely on Ground 1.
Orders Made
- Leave to appeal granted
- Appeal allowed on Ground 1
- Applicant re-sentenced to an aggregate term of 13 years' imprisonment with a non-parole period of 9 years
Key Takeaways
- The Court of Criminal Appeal confirmed that comparative cases, even those decided before amendments to s 66EA, remain an important reference point when assessing the objective seriousness of persistent child sexual abuse offences, provided care is taken to account for any legislative changes.
- A sentencing judge's failure to have regard to the relevant body of comparable appellate decisions can constitute an error outside the proper exercise of discretion, even where the mechanics of the sentencing process are otherwise sound.
- Under the framework in House v The King, the majority found that error can be established where comparable decisions demonstrate that the seriousness rating was simply not open, without needing to identify a specific procedural flaw in the sentencing judge's reasoning.
- Wilson J's dissent illustrates a continuing tension in the Court of Criminal Appeal over the appropriate use of objective seriousness "ranges" as a basis for appellate challenge. Several decisions have cautioned against treating range terminology as a precise framework from which error can be mechanically derived.
- A finding of special circumstances is discretionary and the Court of Criminal Appeal will be slow to intervene, but will do so where the sentencing judge has inadvertently failed to give practical effect to the finding when setting the non-parole period.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61M, 66DB, 66EA, 91H
Cases
- House v The King (1936) 55 CLR 499
- Burr v R [2020] NSWCCA 282
- Hillman v R [2021] NSWCCA 43
- GP (a pseudonym) v R [2021] NSWCCA 180
- Eacott (a pseudonym) v R [2019] NSWCCA 158
- Mills v R [2017] NSWCCA 87
- Magro v R [2020] NSWCCA 25
- Martellotta v R [2021] NSWCCA 168
- Irmak v R; Dagdanasar v R [2021] NSWCCA 178
- McDowall v R [2019] NSWCCA 29
- Higgins v R [2020] NSWCCA 169
- MD v R [2015] NSWCCA 37
- El-Ahmad v R [2015] NSWCCA 65
- AM v R [2020] NSWCCA 101
- Brown v R [2022] NSWCCA 116
- Carnaby v R [2022] NSWCCA 250
- Caristo v R [2011] NSWCCA 7
- IS v R [2011] NSWCCA 142
- Hitchen v R [2010] NSWCCA 77