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Court of Criminal Appeal 5 April 2023

Doig v R

[2023] NSWCCA 76

Sexual offences
SENTENCED

Citation: Doig v R [2023] NSWCCA 76
Court: Court of Criminal Appeal, New South Wales
Date: 5 April 2023
Judge(s): Beech-Jones CJ at CL; Garling J; Yehia J

Background

The applicant pleaded guilty in the Local Court to four offences under the Criminal Code Act 1995 (Cth): procuring a child to engage in sexual activity outside Australia (s 272.14(1)); possessing or controlling child abuse material obtained via a carriage service (s 474.22A(1)); persistent sexual abuse of a child outside Australia (s 272.11(1)(c)); and causing child abuse material to be transmitted using a carriage service (s 474.22(1)(a)(i)).

The offending spanned August 2019 to June 2020 and involved a 13-year-old Filipina child (referred to as MT). The applicant transferred money to MT and associated individuals, communicated with her via Facebook Messenger to procure sexual videos and images, and conducted video calls during which MT engaged in sexual activity while the applicant watched in real time. Child abuse material was found on the applicant's mobile phone.

On 17 December 2021, O'Rourke SC DCJ in the District Court imposed an aggregate term of 9 years' imprisonment with a non-parole period of 5 years and 6 months. The applicant sought leave to appeal on the single ground that this sentence was manifestly excessive.

  • Whether the aggregate sentence of 9 years' imprisonment was manifestly excessive.
  • Whether the sentencing Judge's indicative starting point of 10 years for the persistent sexual abuse offence (sequence 4) was disproportionately high and caused the aggregate sentence to be inflated.
  • What the appropriate indicative and aggregate sentences were upon resentencing.

Decision

The Court of Criminal Appeal, with Yehia J delivering the principal judgment and Beech-Jones CJ at CL and Garling J agreeing, granted leave to appeal and allowed the appeal.

The Court found that the starting point of 10 years' imprisonment for the indicative sentence on sequence 4 (persistent sexual abuse of a child outside Australia, under s 272.11) was excessive. That indicative sentence was the major contributor to the aggregate sentence, and its disproportionate length operated to inflate the overall sentence imposed. Both the head sentence and the non-parole period were therefore manifestly excessive.

In assessing the appropriate indicative sentence for sequence 4, the Court noted the limited number of published decisions under s 272.11, making it difficult to identify an established range. Beech-Jones CJ at CL observed that the type and seriousness of the underlying offence is a relevant factor in assessing objective seriousness under s 272.11. Here, the underlying offence involved sexual activity other than sexual intercourse (s 272.9(1)) conducted remotely over an internet platform, rather than in the physical presence of the applicant. Regard was also had to comparable decisions in other jurisdictions, consistent with the requirement under federal sentencing principles to consider sentences imposed by other states and territories.

On resentencing, the Court adopted the same indicative sentences as the sentencing Judge for sequences 1, 3, and 5, but reduced the indicative discounted sentence for sequence 4 to 6 years' imprisonment. Applying the totality principle and allowing for partial accumulation with some overlap between offences, the Court imposed an aggregate term of 7 years and 6 months' imprisonment with a non-parole period of 4 years and 6 months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence set aside.
  • Applicant resentenced to an aggregate term of 7 years and 6 months' imprisonment, commencing 3 December 2021 and expiring 2 June 2029.
  • Non-parole period of 4 years and 6 months set; earliest parole eligibility date of 2 June 2026.
  • Indicative individual sentences recorded as follows:
  • Sequence 1 (procuring child to engage in sexual activity outside Australia): 4 years.
  • Sequence 3 (possession of child abuse material via carriage service): 2 years and 9 months.
  • Sequence 4 (persistent sexual abuse of child outside Australia): 6 years.
  • Sequence 5 (causing child abuse material to be transmitted via carriage service): 3 years.

Key Takeaways

  • A disproportionately high indicative sentence for the most serious offence in an aggregate sentencing exercise can infect the overall aggregate sentence and render it manifestly excessive, even where the individual indicative sentences for other counts are unimpeachable.
  • Under s 272.11 of the Criminal Code Act 1995 (Cth), the type and seriousness of the underlying offence is a relevant consideration when assessing the objective gravity of a persistent sexual abuse charge; offences involving only sexual activity (rather than sexual intercourse) conducted remotely are treated as less grave than those involving physical presence.
  • In sentencing for federal offences, the Court confirmed the obligation to consider comparable sentences imposed by intermediate courts of appeal in other states and territories, in accordance with Hili v The Queen (2010) 242 CLR 520 and Barbaro v The Queen (2014) 253 CLR 58.
  • The mandatory minimum sentencing regime introduced by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), which imposes a 7-year minimum for offences under s 272.11(c), did not apply here because the offending predated its commencement; the Court sentenced on the basis of the penalties in force at the time of the offences.
  • In resentencing, the Court maintained the same ratio between head sentence and non-parole period as the sentencing Judge had intended, reflecting the principle that the non-parole period must represent the minimum time justice requires the applicant to serve having regard to all the circumstances.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 272.8(1), 272.8(2), 272.9(1), 272.9(2), 272.11(1), 272.14(1), 474.19(1), 474.22(1)(a)(i), 474.22A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2A), 53A(2)(b)
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)
- Criminal Code Act 1899 (Qld), s 228D

Cases
- Baden v R [2020] NSWCCA 23
- Baker v R [2022] NSWCCA 195
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bugmy v The Queen (1990) 169 CLR 525
- Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301
- DS v R; DM v R [2022] NSWCCA 156
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
- JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Power v The Queen (1974) 131 CLR 623
- R v Harrison; Ex parte Director of Public Prosecutions (Cth) (2021) 294 A C