AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Court of Criminal Appeal 10 February 2023

Grange v R

[2023] NSWCCA 6

Sexual offences
CRIME SENTENCE APPEAL MANIFEST EXCESS OF AGGREGATE SENTENCE WEEKS O BJECTIVE SERIOUSNESS OF OFFENDING AGGRAVATING FACTORS

Citation: Grange v R [2023] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 10 February 2023
Judges: Beech-Jones CJ at CL, Bellew J, Fagan J

Background

The applicant pleaded guilty to 26 sexual offences under the Crimes Act 1900 (NSW) committed against three very young girls, as well as four offences under the Criminal Code (Cth). The State offences included aggravated indecent assault, sexual intercourse with a child under 10, and using children under 14 to produce child abuse material. The victims were aged between eight weeks and five years at the time of the offending.

The offending came to light after the Australian Federal Police executed a search warrant at the applicant's home and seized electronic devices. Those devices contained downloaded child pornography (the subject of the Commonwealth charges) and recordings the applicant had made of his own sexual assaults on the three child victims. The victims included his niece, the young child of a close friend, and an eight-week-old baby whose mother had briefly stepped outside during a social visit.

In the District Court, the applicant received an aggregate sentence of 30 years imprisonment with a non-parole period of 20 years and 6 months for the State offences, and a separate aggregate sentence of 4 years and 6 months for the Commonwealth offences. He sought leave to appeal both sentences, arguing primarily that the aggregate State sentence was manifestly excessive.

  • Whether the aggregate sentence of 30 years for the State offences was manifestly excessive
  • Whether the sentencing judge attributed psychological harm to the victims without adequate evidentiary support, thereby inflating the objective gravity of the offences
  • Whether the very young age of the victims was properly treated as increasing the objective seriousness of the offending
  • Whether the aggregate sentence appropriately reflected the totality of the applicant's criminality

Decision

The Court of Criminal Appeal was divided on the manifest excess ground, producing three separate judgments. Fagan J, in the leading judgment, concluded that the aggregate sentence for the State offences was manifestly excessive because the sentencing judge had attributed harm to the victims without evidentiary support, thereby improperly inflating her assessment of objective seriousness. On that basis, Fagan J would have allowed the appeal on the State sentence and reduced the aggregate term to 20 years with a non-parole period of 13 years.

Beech-Jones CJ at CL, however, disagreed with Fagan J on this critical point. His Honour found that the sentencing judge had not made a positive finding of harm but had simply rejected a submission that no harm had been caused. Consistent with the approach endorsed in DBW v R [2007] NSWCCA 236, the sentencing judge was entitled to proceed on the basis of a substantial risk of emotional harm, particularly given the extreme youth of the victims and the nature of the conduct. Beech-Jones CJ at CL concluded the aggregate sentence was not manifestly excessive.

Bellew J agreed with the reasons and orders proposed by Beech-Jones CJ at CL, meaning the majority held that the State sentence was not manifestly excessive and the appeal on that ground failed. The challenge to the Commonwealth sentence was rejected by all members of the Court.

The appeal was therefore dismissed, and the original aggregate sentence of 30 years with a non-parole period of 20 years and 6 months for the State offences was confirmed by majority.

Orders Made

  • Leave to appeal granted (in the context of the application being considered on its merits)
  • Appeal dismissed (by majority: Beech-Jones CJ at CL and Bellew J)
  • The aggregate State sentence of 30 years imprisonment with a non-parole period of 20 years and 6 months was confirmed
  • The aggregate Commonwealth sentence of 4 years and 6 months with a non-parole period of 3 years and 4 months was confirmed

Note: Fagan J's proposed orders (which would have substituted a reduced sentence) did not represent the majority outcome and were not the final orders of the Court.

Key Takeaways

  • A sentencing judge who rejects a submission that a child victim suffered no harm is not, without more, making a positive finding of harm unsupported by evidence. The majority confirmed this distinction is legally significant when assessing whether objective seriousness has been improperly inflated.
  • Under the approach endorsed in DBW v R, sentencing courts may proceed on the basis of a "substantial risk of emotional harm" to very young victims of sexual offending, even in the absence of direct evidence of psychological injury at the time of sentencing.
  • The extreme youth of a victim, including infancy, properly increases the objective seriousness of a sexual offence. The sentencing judge's treatment of an eight-week-old victim as being at the highest level of vulnerability within the class of victims contemplated by s 66A of the Crimes Act was not criticised by the majority.
  • Manifest excess requires the appellate court to be satisfied that the sentence is unreasonable or plainly unjust. A closely divided Court of Criminal Appeal illustrates how high that threshold sits in cases involving sustained, predatory offending against multiple very young victims.
  • Totality principles remain central to aggregate sentencing for multiple offences against multiple victims. The majority held that the 30-year aggregate sentence with a 20-year and 6-month non-parole period properly reflected the overall criminality without giving rise to a crushing or disproportionate outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 91G(1)(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32(1), 44(2)
- Criminal Code (Cth)

Cases:
- DBW v R [2007] NSWCCA 236
- R v LS [2020] NSWCCA 148
- Aryal v R [2021] NSWCCA 2
- BT v R [2010] NSWCCA 267
- Clarkson v The Queen; EJA v The Queen [2011] VSCA 157
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- EG v R [2015] NSWCCA 21
- Enriquez v R [2012] NSWCCA 60
- Hordern v R [2019] NSWCCA 138
- JM v R [2014] NSWCCA 297
- Lee v R [2020] NSWCCA 244
- MH v R [2011] NSWCCA 230
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Berg [2004] NSWCCA 300
- R v CTG [2017] NSWCCA 163
- R v Gavel [2014] NSWCCA 56
- R v Tuala [2015] NSWCCA 8
- RP v R [2013] NSWCCA 192
- RR v R [2011] NSWCCA 235
- SW v R [2013] NSWCCA 255