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Court of Criminal Appeal 7 March 2023

R v DN

[2023] NSWCCA 39

Sexual offences
CRIME APPEALS CROWN APPEAL AGAINST SENTENCE PAROLE PERIOD OF 5 YEARS WHETHER SENTENCE MANIFESTLY INADEQUATE RESPONDENT RESENTENCED

Citation: R v DN [2023] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 7 March 2023
Judge(s): Gleeson JA, Fagan J, Dhanji J

Background

The respondent was the de facto stepfather of a 14-year-old girl. He had lived in the same household as the victim and her mother since the victim was 11, during which time he engaged in sexualised and disinhibited conduct towards her over a period of years, including entering her bedroom at night, watching her shower, grabbing her, and making sexualised comments.

In July 2020, the respondent committed two serious offences of aggravated sexual intercourse without consent against the victim. On both occasions he used physical force, restrained her, and made threats to prevent her from reporting what had occurred. Two additional offences from the same period were taken into account on a Form 1 (a mechanism under NSW sentencing law that allows a court to take into account other offences an offender has acknowledged committing, without formally convicting them of those offences).

The respondent pleaded guilty on the third day of his trial, after a jury had been empanelled and tendency evidence admitted. The District Court sentenced him to an aggregate term of 7 years and 6 months imprisonment with a non-parole period of 5 years. The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the aggregate sentence of 7 years and 6 months with a 5-year non-parole period was manifestly inadequate for two counts of aggravated sexual intercourse without consent against a 14-year-old victim, where additional offences were taken into account on a Form 1.
  • Whether the Court of Criminal Appeal should exercise its discretion to decline to intervene despite finding manifest inadequacy.
  • What the appropriate sentence should be on resentencing.

Decision

The Court of Criminal Appeal unanimously found the aggregate sentence manifestly inadequate, allowing the Crown appeal and resentencing the respondent.

Gleeson JA, writing the principal judgment, noted that each of the two principal offences carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The sentencing judge had assessed the offences as falling within, or at least within, the mid-range of objective seriousness. The offending involved physical force, threats to secure the victim's silence, and one instance of ejaculation inside the victim. The conduct had been preceded by three years of sexualised behaviour towards the victim from when she was 11.

Gleeson JA compared the sentence with outcomes in analogous cases decided by the Court, finding the aggregate sentence markedly inconsistent with those comparable decisions. The respondent's subjective case, which included limited criminal history, diagnoses of ADHD, PTSD and depression, and a history of drug use, was not sufficient to justify so substantial a departure from the range established by comparable cases. The claim that MDMA use explained or mitigated the offending received little support at the sentencing hearing after the psychologist substantially resiled from the relevant opinion in cross-examination.

Fagan J agreed, emphasising that the sentencing judge made no specific factual error but that each indicative sentence was excessively lenient by a significant margin. His Honour added observations about the diminished general deterrent effect of sentencing outcomes in these cases due to statutory requirements to anonymise offenders, which limit media reporting and reduce public awareness of the penal consequences of this type of offending.

Orders Made

  • Crown appeal allowed.
  • Sentence imposed by the District Court on 11 August 2022 set aside.
  • Respondent resentenced to an aggregate term of 12 years imprisonment with a non-parole period of 8 years.
  • Sentence backdated to commence from 23 November 2020.
  • First eligible date for release to parole: 22 November 2028.

Key Takeaways

  • The Court of Criminal Appeal confirmed that manifest inadequacy does not require identification of a specific sentencing error: it is sufficient that the aggregate sentence is markedly inconsistent with the outcomes in comparable cases.
  • A guilty plea entered on the third day of trial, after jury empanelment and the admission of tendency evidence, attracted only a modest discount, reflecting the limited utilitarian value of the plea at that stage.
  • Objective seriousness was heightened by the combination of factors: physical force, threats to secure silence, repeated offending, ejaculation, and a prolonged prior period of sexualised conduct towards the victim beginning when she was 11.
  • Subjective considerations, including mental health diagnoses, limited criminal history, and an unsubstantiated claim of drug-induced memory loss, did not justify an aggregate sentence so far below the range established by comparable decisions.
  • Fagan J raised a broader systemic concern: statutory anonymisation of offenders in child sexual assault cases limits press reporting, which in turn may reduce the general deterrent effect of substantial sentences imposed in this category of offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M, 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 3, ss 53A, 54A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a)

Cases:
- Aloniu v R [2017] NSWCCA 74
- Aryal v R [2021] NSWCCA 2
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- DH v R [2019] NSWCCA 128
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Enriquez v R [2012] NSWCCA 60
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- FB v R [2011] NSWCCA 217
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hall v R [2021] NSWCCA 220
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 49
- JJ v R [2020] NSWCCA 165
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Moodie v R [2020] NSWCCA 160
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Noonan v R [2021] NSWCCA 35
- R v PC [2022] NSWCCA 59
- R v Wall (2002) 71 NSWLR 692