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27
Court of Criminal Appeal 12 April 2023

Director of Public Prosecutions (NSW) v TH

[2023] NSWCCA 81

Also reported as (2023) 307 A Crim R 149
Sexual offences
CRIME APPEALS CROWN APPEAL AGAINST SENTENCE MANIFEST INADEQUACY FORM 1 OFFENCES APPEAL ALLOWED

Citation: Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 12 April 2023
Judges: Beech-Jones CJ at CL; Garling J; Yehia J

Background

The respondent, TH, pleaded guilty to four sexual offences against his stepson, BH, committed over a four-year period. The offending began when the victim was approximately 7 or 8 years old and continued until he was 12. The respondent was the victim's stepfather, having formed a relationship with the victim's mother in 2009 and marrying her in November 2016.

The four counts on the indictment comprised one count of sexual intercourse with a child under 10 (Crimes Act 1900 (NSW), s 66A(1)), two counts of aggravated sexual intercourse with a child aged between 10 and 14 (s 66C(2)), and one count of intentionally carrying out a sexual act with a child aged between 10 and 16 (s 66DE(1)(a)). Three additional sexual offences were taken into account on a Form 1 (that is, acknowledged by the court in sentencing without separate conviction).

In October 2022, Flannery DCJ in the District Court sentenced the respondent to an aggregate term of 7 years and 6 months imprisonment, with a non-parole period of 4 years and 6 months. The DPP appealed to the Court of Criminal Appeal on the sole ground that the aggregate sentence was manifestly inadequate.

  • Whether the indicative sentences for counts 1 to 3 were within the proper range for offences of their kind
  • Whether the aggregate sentence adequately reflected the total criminality involved, including the Form 1 offences
  • Whether the degree of concurrency built into the aggregate sentence was excessive
  • Whether, if error was established, the Court's residual discretion to decline to intervene should nonetheless be exercised
  • What sentence should be substituted on resentencing

Decision

The Court of Criminal Appeal, with Garling and Yehia JJ agreeing with Beech-Jones CJ at CL, allowed the appeal and set aside the sentence. To succeed under s 5D of the Criminal Appeal Act 1912 (NSW), the DPP was required to demonstrate error of the kind identified in House v The King (1936) 55 CLR 499, specifically that the sentence was unreasonable or plainly unjust. The Court was satisfied that standard was met.

The indicative sentences for counts 1, 2 and 3 were found to be well below any proper conception of the appropriate range. This conclusion was reinforced by comparing them with indicative sentences approved in previous Court of Criminal Appeal decisions concerning offences under ss 66A and 66C(2), and by the fact that each of those counts carried a serious Form 1 offence. The inadequacy of the indicative sentences on counts 1 to 3 was found to flow almost inevitably into the inadequacy of the aggregate sentence.

Separately, even if the indicative sentences had been defensible in isolation, the aggregate sentence was still insufficient because it failed to reflect the total criminality involved. The indicative non-parole period for count 3 alone was only 11 months less than the total aggregate non-parole period, demonstrating an excessive degree of concurrency across the overall sentence structure.

The Court also found that the residual discretion not to interfere should not be exercised. Given that the aggregate sentence was inadequate by a margin of many years, and given the serious nature and sustained duration of the offending, the Court proceeded to resentence the respondent.

Orders Made

  • Appeal allowed
  • Sentence imposed on 14 October 2022 set aside
  • Respondent resentenced to an aggregate term of 12 years imprisonment, commencing 14 May 2020 and expiring 13 May 2032
  • Aggregate non-parole period of 8 years set, expiring 13 May 2028 (earliest parole eligibility date: 14 May 2028)
  • Indicative sentences specified for each count:
  • Count 1 (s 66A(1), with Form 1): 6 years and 11 months, non-parole period of 4 years and 7 months
  • Count 2 (s 66C(2), with Form 1): 6 years and 4 months, non-parole period of 4 years and 3 months
  • Count 3 (s 66C(2), with Form 1): 7 years and 10 months, non-parole period of 5 years and 2 months
  • Count 4 (s 66DE(1)(a)): 18 months imprisonment

Key Takeaways

  • Indicative sentences for serious child sexual offences under ss 66A and 66C(2) of the Crimes Act 1900 (NSW) must be assessed by reference to the range established in comparable Court of Criminal Appeal decisions, and the presence of serious Form 1 offences is a material factor in that assessment.
  • Where the aggregate non-parole period for multiple serious offences barely exceeds the indicative non-parole period for a single count, this may demonstrate an excessive degree of concurrency inconsistent with the requirement that an aggregate sentence reflect total criminality.
  • A manifestly inadequate sentence constitutes error of the House v The King variety, giving the Court of Criminal Appeal jurisdiction to intervene under s 5D of the Criminal Appeal Act 1912 (NSW).
  • The residual discretion not to resentence following a successful Crown appeal will not be exercised where the sentencing error is substantial and the offending is of a serious nature.
  • The Court of Criminal Appeal increased the aggregate sentence from 7 years and 6 months to 12 years (non-parole period increased from 4 years and 6 months to 8 years), reflecting the sustained and grave character of the offending over four years against a young child by a person in a position of domestic trust.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(1), 66C(2), 66DE(1)(a), 61O(2) (former)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32(1), 44(2A), 53A(2)(c)
- Criminal Appeal Act 1912 (NSW), s 5D
- Evidence Act 1995 (NSW)

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489
- JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Facer (a pseudonym) v The Queen (2019) 279 A Crim R 156; [2019] NSWCCA 180
- Merkel v R [2019] NSWCCA 212
- Aryal v R [2021] NSWCCA 2
- Lee v R [2020] NSWCCA 244
- R v Brown [2012] NSWCCA 199
- TO v The Queen (2017) 265 A Crim R 191; [2017] NSWCCA 12
- RH v R [2019] NSWCCA 64
- R v DN [2023] NSWCCA 39
- Bhatia v R [2023] NSWCCA 12
- Grange v R [2023] NSWCCA 6