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Court of Criminal Appeal 26 July 2024

ET v R

[2024] NSWCCA 131

Sexual offencesAssault & violence
CRIME APPEALS APPEAL AGAINST AGGREGATE SENTENCE NO ERROR SHOWN NO ERROR SHOWN CRIME APPEALS

Citation: ET v R [2024] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 26 July 2024
Judge(s): Mitchelmore JA, Kirk JA, Davies J (Davies J delivered the principal judgment; Mitchelmore and Kirk JJA agreed)

Background

The applicant pleaded guilty to four counts of assaulting a female and committing an act of indecency on a person under 16 years of age, contrary to s 76 of the Crimes Act 1900 (NSW) as it stood between 1958 and 1981. The offences involved two complainants: the applicant's half-sister, who was aged six and eight at the time of the relevant offending, and the applicant's niece, who was aged eight and between 13 and 14. The offending in each case involved digital penetration and was accompanied by threats to the complainants. Additional uncharged acts, including fondling, forced masturbation, and forced fellatio, were placed on Form 1 documents taken into account on sentence.

The applicant was aged between 16 and 19 at the time of the offences against his half-sister, and aged 32 to 37 at the time of the offences against his niece. At sentencing in the District Court, the applicant relied principally on a psychologist's report addressing his childhood in child services and his service in the Vietnam War, during which he was shot and subsequently diagnosed with PTSD. He did not give evidence at the sentence proceedings.

Judge Robinson sentenced the applicant to an aggregate term of four years and six months' imprisonment, with a non-parole period of two years and three months. The applicant then sought leave to appeal on four grounds.

  • Whether the sentencing judge failed to reduce the applicant's moral culpability on account of his youth at the time of the offences against the first complainant, resulting in manifestly excessive indicative sentences
  • Whether the sentencing judge erred by failing to find remorse
  • Whether the aggregate sentence was manifestly excessive
  • Whether new evidence, not placed before the sentencing judge, produced a miscarriage of justice

Decision

Ground 1: Moral culpability and youth
The Court noted that no submission had been made to the sentencing judge about the applicant's youth at the time of the first two counts reducing his moral culpability. The Court applied the established principle that a party ordinarily cannot raise on appeal an issue that was not raised at first instance. In any event, Davies J found that the sentencing judge had in fact reduced the applicant's moral culpability to account for his age and immaturity at the time of those offences. No error was established.

Ground 2: Remorse
The Court reaffirmed that sentencing proceedings are adversarial in nature. Where no submission on remorse is made and no issue is joined, a sentencing judge cannot ordinarily be expected to make a positive finding on that topic. The applicant had previously apologised to one complainant, but the Court found that the apology did not demonstrate acceptance of responsibility for the criminal conduct, as required by s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant had also claimed he could not remember the offending, which was inconsistent with a finding of remorse. No error was established.

Ground 3: Manifest excess
The Court found that the sentencing judge was not required to identify specific statutory provisions by name, provided she addressed the mitigating factors those provisions contemplate. Her Honour's remarks on sentence were described as comprehensive and thorough. The offences were committed against two young and defenceless victims in their own homes, with threats designed to ensure silence. The indicative sentences and the aggregate sentence were each within the range properly open to the sentencing judge. The Court also reiterated the principle that a party is ordinarily bound by the conduct of their counsel at first instance.

Ground 4: New evidence
The applicant sought to tender two affidavits on appeal relating to a 1975 conviction, arguing the material demonstrated a link between his mental health and the offending against the second complainant. The Court rejected the tender. The new evidence did not add anything of substance to what was already before the sentencing judge, and it did not establish any material causal link between the applicant's mental health and his offending. Critically, the applicant's own counsel had expressly disavowed any such link at the sentence hearing. The sentencing judge had already reduced the applicant's moral culpability on account of his mental health, and had applied a generous reduction to the non-parole period. No miscarriage of justice was demonstrated.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A ground of appeal directed at sentencing error will generally not be available where the relevant submission was never made before the sentencing judge, consistent with the adversarial nature of sentencing proceedings.
  • Under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), remorse requires acceptance of responsibility for criminal conduct on the balance of probabilities; an apology alone, particularly where the offender also claims not to remember the conduct, does not satisfy that standard.
  • No error arises from a sentencing judge's failure to refer expressly to a specific statutory provision, provided the mitigating factors addressed by that provision are substantively considered.
  • New evidence sought to be tendered for the first time on a sentence appeal will be rejected where it adds nothing of substance to the evidence before the sentencing judge and does not make a material contribution to explaining the offending.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence of four years and six months was open for four counts of historical indecency offending against two young complainants in circumstances involving abuse of trust, threats, and repeated conduct over time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 76 (repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 21B

Cases
- Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- Brzozowski v R [2023] NSWCCA 129
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cameron v R (2002) 209 CLR 339; [2002] HCA 6
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Edmonds v R [2022] NSWCCA 103
- Ghamraoui v R [2009] NSWCCA 111
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Birks (1990) 19 NSWLR 677
- R v Obbens [2022] NSWCCA 109
- Richards v R [2023] NSWCCA 264
- Vassiliou v R [2022] NSWCCA 91
- Whipp v R [2024] NSWCCA 79
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460