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Court of Criminal Appeal 24 April 2023

R v Packer

[2023] NSWCCA 87

Sexual offences
SENTENCE MANIFESTLY INADEQUATE APPEAL ALLOWED — RESPONDENT RESENTENCED

Citation: R v Packer [2023] NSWCCA 87
Court: NSW Court of Criminal Appeal
Date: 24 April 2023
Judges: Simpson AJA; Davies J; Wilson J

Background

The respondent was convicted after a jury trial in the NSW District Court of twelve sexual offences against two young Nepali women, both aged around 18 or 19, who had arrived in Australia on student visas and accepted live-in housekeeper roles at his home. The offences against the first complainant (NB) included six counts of sexual intercourse without consent, one count of attempted sexual intercourse without consent, and three offences relating to the covert recording, distribution, and threatened distribution of intimate images. The respondent had used the threat of distributing a secretly recorded video to NB's family in Nepal as a tool of control during the offending period. The offences against the second complainant (FP) included sexual intercourse without consent and sexual touching without consent.

NB provided a victim impact statement describing the profound effect the offending had on her. She gave evidence that if her family saw the video, they would "break" their relationship with her. The respondent had in fact distributed intimate images to a person in Nepal who shared NB's surname and came from the same region.

The District Court sentenced the respondent to an aggregate term of 12 years and 8 months' imprisonment with a non-parole period of 8 years. The sentencing judge expressly declined to treat NB's emotional harm as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), concluding that the harm could not be attributed to any individual offence. The Crown appealed on the grounds of legal error, misapplication of the totality principle, and manifest inadequacy.

  • Whether the sentencing judge erred by refusing to treat the substantial emotional harm suffered by NB as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether a victim impact statement, unobjected to by the defence, can establish the s 21A(2)(g) aggravating factor
  • Whether substantial emotional harm that cannot be attributed to a single individual offence can nonetheless inform the determination of an aggregate sentence
  • Whether the emotional harm aggravating factor applied to the intimate image dissemination offences, and whether applying it to those offences constituted impermissible double counting
  • Whether the sentencing judge misapplied the principle of totality
  • Whether the sentence was manifestly inadequate

Decision

The Court of Criminal Appeal unanimously found that the sentencing judge erred in declining to give any weight to NB's substantial emotional harm. The evidence established beyond real doubt that NB suffered harm well beyond what could ordinarily be expected from these offences. That heightened harm arose principally from the cultural context of her community in Nepal, where the disclosure of sexual relations outside marriage carries severe social consequences, including family rejection.

Davies J (Wilson J agreeing) held that the victim impact statement was properly before the sentencing judge and, because no objection was taken to it and no application was made to limit its use, it could be used to establish the s 21A(2)(g) aggravating factor. The sentencing judge should have found the aggravating factor applied to the dissemination offences (counts 2, 9, 10 and 11). No double counting arose: the purpose of s 21A(2)(g) is to capture cases where harm exceeds what would ordinarily be anticipated, not merely to recognise that an offence is harmful in the general sense. Davies J further held that it was artificial to separate the sexual intercourse counts from the recording and distribution of those acts, given that the substantial harm to NB flowed from her family and community learning of the non-consensual sexual activity.

Simpson AJA added that in cases of multiple offending, where substantial harm is established but cannot neatly be attributed to any single count, a sentencing judge can and should take that harm into account when fixing the aggregate sentence. Harm caused by multiple offending is directly relevant to the totality assessment. All three judges agreed that the failure to account for this harm infected both the totality analysis and the overall sentence, rendering it manifestly inadequate.

The Court resentenced the respondent to an aggregate term of 17 years' imprisonment. Special circumstances were found, given that this was the respondent's first time in custody and a longer parole period would assist rehabilitation. The non-parole period was set at 12 years.

Orders Made

  • Appeal upheld
  • Sentence imposed in the District Court on 13 August 2021 quashed
  • Respondent resentenced to an aggregate term of 17 years' imprisonment, commencing 13 August 2020 and expiring 12 August 2037
  • Non-parole period of 12 years, expiring 12 August 2032
  • Respondent first eligible for parole on 12 August 2032

Key Takeaways

  • Under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the aggravating factor of substantial emotional harm captures harm that goes beyond what would ordinarily be expected from the offence type; it is not enough that the offence is harmful in general terms, but the elevated harm in a particular case must be identified and weighed.
  • A victim impact statement that is placed before a sentencing court without objection, and without any application to limit its use, can properly be used to establish the existence of the s 21A(2)(g) aggravating factor.
  • In multiple-offence cases where substantial harm is proven but cannot be linked to any single count in isolation, the Court of Criminal Appeal confirmed that the harm can still be taken into account when determining the aggregate sentence, and is particularly relevant to the totality assessment.
  • Applying the substantial emotional harm aggravating factor to intimate image dissemination offences does not constitute impermissible double counting simply because harm prevention is part of the rationale for those offences; the factor applies where the actual harm exceeds ordinary expectations.
  • Cultural and community context can be directly relevant to the degree of harm suffered by a complainant; the Court accepted that NB's harm was substantially amplified by the norms of her Nepali community, and this was a proper matter for the sentencing court to consider.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61KC, 91P, 91Q, 91R
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Criminal Appeal Act 1912 (NSW), s 5D(1)

Cases
- Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544
- Griffiths v The Queen (1977) 137 CLR 293
- Kentwell v R (No 2) [2015] NSWCCA 96
- Lee v R [2016] NSWCCA 66
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mol v R [2017] NSWCCA 76
- Muggleton v R [2015] NSWCCA 62; (2015) 250 A Crim R 180
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pannowitz v R [2016] NSWCCA 13
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Hamid [2006] NSWCCA 302
- R v Tuala [2015] NSWCCA 8; (2015) 248 A Crim R 502
- Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74