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Court of Criminal Appeal 27 March 2023

BM v R

[2023] NSWCCA 68

Sexual offences
CRIME SENTENCE APPEAL PAROLE PERIOD OF 4 YEARS AND 3 MONTHS FINDING OF SPECIAL CIRCUMSTANCES WHETHER SENTENCE MANIFESTLY EXCESSIVE LEAVE TO APPEAL GRANTED

Citation: BM v R [2023] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 27 March 2023
Judges: Mitchelmore JA, Walton J (primary reasons), Adams J

Background

The applicant pleaded guilty to three counts of sexual intercourse with a child and sought to have two additional offences taken into account on a Form 1. The offences were committed between 1984 and 1990, when the victim was between five and ten years of age. Each offence involved digital penetration, and the conduct occurred on multiple occasions in domestic settings and once at a swimming pool, while the victim was in the applicant's care.

The applicant was sentenced in the District Court of New South Wales on 23 August 2021. The sentencing judge imposed an aggregate term of seven years' imprisonment with a non-parole period of four years and three months, and made a finding of special circumstances resulting in a non-parole period of approximately 60% of the head sentence. Indicative sentences were assigned to each count: two years and eight months for Count 1 (sexual intercourse with a child under 16), and four years and four years and six months respectively for Counts 2 and 3 (each involving a child under ten, with a Form 1 offence attached to each).

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentencing judge assessed the objective seriousness of Counts 2 and 3 too highly, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erroneously applied the maximum penalty and standard non-parole period current at the time of sentencing (life imprisonment and 15 years respectively) rather than the penalties in force at the time of offending (maximum of 20 years) when assessing objective seriousness under s 66A of the Crimes Act 1900 (NSW).
  • Whether the sentencing judge failed to give sufficient explicit weight to specific factors bearing on objective seriousness, including the victim's age and the nature of the sexual acts (digital rather than penile penetration).
  • Whether the aggregate sentence of seven years was manifestly excessive, having regard to objective seriousness, subjective factors, the limited role of specific deterrence, and the need for concurrency.

Decision

The legislative guideposts issue. The Court found no error in the sentencing judge's approach to the applicable maximum penalty. Reading the sentencing remarks as a whole, the sentencing judge clearly applied the maximum of 20 years that applied to s 66A offences at the time of the offending, not the higher penalties introduced later. The reference to "legislative guideposts" in the remarks did not indicate that the judge had mistakenly applied the current maximum of life imprisonment or the current standard non-parole period of 15 years.

The explicitness of factors issue. The Court held that the sentencing judge had sufficiently taken into account both the victim's young age and the nature of the sexual acts as digital penetration. A sentencing judge is not required to state explicitly, and in precise terms, the extent to which each individual factor contributed to an overall assessment of objective seriousness. The Court also confirmed that the absence of aggravating features (such as the use of force or threats) does not render the offending less serious than it was. The identification of factors that were absent but would have made the offence more serious simply does not operate to reduce the objective gravity of the offending.

The manifest excess issue. The Court found that the aggregate sentence was not unreasonable or plainly unjust. The sentencing judge had taken into account the need for partial accumulation across multiple offences, general deterrence, and the applicant's subjective circumstances (including the loss of his nursing career and psychological impacts). Those subjective factors, while significant, could not override the objective seriousness of the offending. The comparative cases relied upon by the applicant were found insufficient to establish a sentencing range that would demonstrate manifest excess.

Leave to appeal was granted, but the appeal was dismissed unanimously.

Orders Made

  • Leave to appeal granted.
  • The appeal is dismissed.

Key Takeaways

  • A sentencing judge's reference to "legislative guideposts" does not automatically indicate reliance on penalties in force at the time of sentencing; the Court reads the remarks as a whole to determine which penalties were actually applied.
  • Where an offence occurred before amendments to maximum penalties or standard non-parole periods, the sentencing court must apply the penalties in force at the time of offending, and a failure to do so would constitute a material error.
  • Identifying aggravating features that were absent from an offence does not make the offence less serious than it was. The Court of Criminal Appeal reaffirmed that the absence of additional aggravation is not a mitigating circumstance.
  • Sentencing judges are not required to articulate precisely the individual weight assigned to each factor when assessing objective seriousness. Descriptors such as "slightly below mid-range" or "about mid-range" are neither prescribed nor exact, and are not to be held to an unduly technical standard.
  • In dismissing the appeal, the Court confirmed that strong subjective factors, including career loss and psychological impacts, will not necessarily displace the weight of objective seriousness in cases involving repeated sexual offending against young children in a position of trust.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), ss 61D(1), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 25AA, 25D(2)(b)(i)

Cases:
- Bektasovski v R [2022] NSWCCA 246
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Ja v R [2021] NSWCCA 10
- Mammone v R [2013] NSWCCA 95
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mills v R [2017] NSWCCA 87
- Mulato v R [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pizzimenti v R [2017] NSWCCA 231
- R v Ferguson [2022] NSWCCA 147
- RC v R; R v RC [2020] NSWCCA 76
- Saddler v R (2009) 194 A Crim R 452; [2009] NSWCCA 83
- TM v The Queen [2018] NSWCCA 88
- Towse v R [2022] NSWCCA 252
- Vuni v R [2006] NSWCCA 171
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64