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Court of Criminal Appeal 5 August 2024

SR v R

[2024] NSWCCA 109

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE CHILD SEX OFFENCES WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL DISMISSED

Citation: SR v R [2024] NSWCCA 109
Court: NSW Court of Criminal Appeal
Date: 5 August 2024
Judges: Harrison CJ at CL, Garling J, McNaughton J (judgment delivered by McNaughton J)

Background

The applicant pleaded guilty to eight child sexual abuse offences committed against six children over approximately 20 years, between 2000 and 2021. The victims included the applicant's biological daughter and children of two partners, as well as friends of those children. A further seven matters were taken into account on a Form 1 basis (meaning they were considered at sentencing without separate convictions being recorded).

At the sentencing hearing in February 2023, the applicant's counsel submitted that an aggregate sentence of seven to nine years' imprisonment was appropriate, with a significant variation to the statutory ratio between head sentence and non-parole period on the basis of special circumstances. The sentencing judge remarked during an exchange with counsel that he had "no difficulty with special circumstances," but ultimately declined to vary the statutory ratio in the formal remarks on sentence.

On 2 March 2023, the applicant was sentenced in the District Court at Gosford to an aggregate term of 16 years' imprisonment with a non-parole period of 12 years. The applicant sought leave to appeal on two grounds: procedural unfairness in connection with the special circumstances finding, and manifest excess in the aggregate sentence.

  • Whether the sentencing judge's remark that he had "no difficulty with special circumstances" gave rise to a denial of procedural fairness when he subsequently declined to vary the statutory ratio.
  • Whether the aggregate sentence of 16 years with a 12-year non-parole period was manifestly excessive given the nature, duration, and extent of the offending.

Decision

Ground 1: Procedural fairness. The Court found no procedural unfairness. The sentencing judge's comment arose in the context of working through the applicant's written submissions, which his Honour had not fully read before the hearing. McNaughton J characterised the exchange as the judge clarifying the applicant's contentions rather than expressing any concluded view. The remark was not, on a fair reading, an indication that a positive finding of special circumstances would be made.

Garling J added that after completing the review of submissions, the judge expressly invited counsel to make any further submissions. Counsel declined that opportunity. The case therefore lacked the hallmark of procedural unfairness: the applicant had a full opportunity to be heard on the issue before any finding was made. The Court applied Dang v R [2014] NSWCCA 47 in reaching this conclusion.

Ground 2: Manifest excess. The Court found the aggregate sentence was open to the sentencing judge and reflected the totality of the criminality involved. The sentencing exercise was complex, involving six complainants (including the applicant's own daughter), eight charges, seven Form 1 matters, and approximately 20 years of offending. The Court accepted that a degree of notional accumulation was appropriate, while noting the sentencing judge had been alert to the need to avoid a "crushing" sentence. No clear error in any indicative sentence was established, and no such error was shown to have infected the aggregate term.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's informal remark during a hearing that they have "no difficulty" with a submission does not constitute a commitment to make a positive finding on that point, particularly where the remark arises in the course of clarifying written submissions rather than delivering a concluded view.
  • Procedural fairness in sentencing is assessed by substance rather than form. Where counsel was given the opportunity to make further submissions after the relevant exchange and declined to do so, no denial of procedural fairness arises.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that notional accumulation is appropriate where offending spans multiple victims over a lengthy period, provided the aggregate reflects totality and avoids a crushing outcome.
  • Under the approach confirmed in JM v R [2014] NSWCCA 297, there is no direct appeal against an indicative sentence. An error in an indicative term may signal error in the aggregate only where it demonstrably contributed to the sentencing order, and that was not established here.
  • Upholding an aggregate sentence of 16 years for eight child sexual abuse charges (plus seven Form 1 matters) across six victims and two decades, the Court treated the breadth and duration of the offending as justifying considerable, though not unlimited, accumulation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 61O, 66C, 66DA, 66DB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases:
- AA v R [2024] NSWCCA 132
- Caristo v R [2011] NSWCCA 7
- Dang v R [2014] NSWCCA 47 (applied)
- JM v R [2014] NSWCCA 297 (referred to)
- Kelly v R [2023] NSWCCA 104 (referred to)
- R v Fidow [2004] NSWCCA 172
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534