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Court of Criminal Appeal 12 April 2023

DC v R

[2023] NSWCCA 82

Sexual offences
EXISTENT STANDARD NON

Citation: DC v R [2023] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 12 April 2023
Judges: Rothman J, Wilson J, Yehia J (Yehia J delivering the principal judgment)

Background

The applicant, DC, pleaded guilty in the Local Court to a series of sexual offences against two child complainants. The offences included persistent sexual abuse of a child under 16 (against RC, who was 15 at the time), and multiple counts of aggravated indecent assault and sexual intercourse with a child in circumstances of aggravation (against KT, who was 9 or 10 at the time). DC was in a relationship with KT's mother and lived in the family home. The offences were committed when DC was in his mid-to-late thirties.

On 3 September 2021, the District Court sentenced DC to an aggregate term of 13 years and 6 months imprisonment, with a non-parole period of 10 years, commencing 23 April 2021. Indicative sentences were discounted by 25% to reflect the utilitarian value of the guilty pleas.

DC sought leave to appeal against the sentence on a single ground: that the sentencing judge had applied a standard non-parole period (SNPP) to two offences (Sequences 13 and 14, being charges under s 66C(2) of the Crimes Act 1900) where, in fact, no SNPP existed for those offences. The respondent conceded the error.

  • Whether the sentencing judge erred by applying a non-existent SNPP to Sequences 13 and 14.
  • Whether that error required the Court of Criminal Appeal to resentence the applicant afresh.
  • Whether, on resentencing, a lesser aggregate sentence was warranted in law, having regard to the applicant's childhood disadvantage and neuropsychological profile.
  • Whether special circumstances existed justifying a reduction in the non-parole period below the statutory default ratio.

Decision

The Court unanimously found that the sentencing judge had fallen into error by treating an SNPP as applicable to Sequences 13 and 14 when no such SNPP existed in law. Wilson J noted that this error had been contributed to by the parties appearing before the sentencing judge, and observed that legal representatives bear a particular responsibility to provide accurate legal information to the court in sexual offence matters, where legislation has changed frequently and significantly. The error was sufficient to require the Court to exercise the sentencing discretion afresh under the principles in Kentwell v The Queen (2014) 252 CLR 601.

On resentencing, DC argued that his disadvantaged childhood background and neuropsychological profile should reduce his moral culpability and the weight placed on punishment and general deterrence, thereby warranting a lower aggregate sentence. The Court rejected this submission. Yehia J, with whom Rothman and Wilson JJ agreed, found that the applicant had not established that his childhood disadvantage operated to reduce his moral culpability or diminish the emphasis on punishment and deterrence on the facts of this case. The aggregate sentence of 13 years and 6 months was upheld as proportionate and appropriate.

However, the Court found that special circumstances existed warranting a reduction of the non-parole period below the default proportion. As a result, the non-parole period was reduced. The head sentence remained at 13 years and 6 months, but the non-parole period was set at a lesser figure than the original 10 years.

Orders Made

• The time within which to file the Notice of Intention to Appeal is extended.
• Leave to appeal granted.
• The appeal allowed.
• The sentence imposed by King SC DCJ on 3 September 2021 in the District Court of New South Wales is set aside.
• The applicant is re-sentenced to an aggregate term of imprisonment of 13 years and 6 months, commencing on 23 April 2021, and expiring on 22 October 2034.
• A non-parole period of 9 years imprisonment is set, commencing on 23 April 2021.
• The earliest date the applicant will be eligible to be released on parole is 22 April 2030.
• Record that an aggregate sentence is imposed with indicative sentences for each offence as specified in the table.

Key Takeaways

  • Applying a standard non-parole period to an offence that carries no such period in law constitutes a sentencing error requiring the Court of Criminal Appeal to resentence the applicant afresh.
  • Wilson J emphasised that legal representatives in sexual offence proceedings bear a heightened responsibility to ascertain the correct law and properly assist the sentencing court, given the frequency and significance of legislative change in this area.
  • A disadvantaged childhood and neuropsychological profile do not automatically reduce an offender's moral culpability or lessen the weight given to punishment and general deterrence. The applicant must establish a sufficient causal connection on the specific facts.
  • Even where a sentencing error is established and the Court resentences afresh, it does not follow that a lesser aggregate sentence is warranted. The proportionality of the original head sentence remains a separate question from the existence of the procedural error.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) may justify a reduced non-parole period, particularly where the nature and extent of the offending and the offender's profile support a longer period of supervised release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(2), 66D, 66EA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 21A(2)(k), 21A(2)(eb), 25AA(1) (repealed), 25AA(2) (repealed), 44(2A), 53A(2)(b), 54B(4), Sch 2 Pt 27 Cl 68
- Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), Sch 2

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DPP (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194
- Luque v R [2017] NSWCCA 226
- Ryan v Regina [2017] NSWCCA 209
- Kelloway v R [2016] NSWCCA 95
- R v El-Hayek (2004) 144 A Crim R 90; [2004] NSWCCA 25
- R v Fidow [2004] NSWCCA 172
- R v Millwood [2012] NSWCCA 2
- R v Israil [2002] NSWCCA 255