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8
Court of Criminal Appeal 19 July 2024

AA v R

[2024] NSWCCA 132

Sexual offencesDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE SEVERITY APPEAL EXTREMELY SERIOUS OFFENDING TOTALITY CONSIDERATIONS

Citation: AA v R [2024] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 19 July 2024
Judge(s): Ward P and Wilson J; Dhanji J (separate reasons)

Background

The applicant was convicted by a jury of 11 child sexual abuse offences against his two young stepdaughters. The offences involved serious and repeated sexual abuse carried out by a man who had assumed the role of father to the victims. The Crown also placed before the sentencing court evidence of related offending against one of the victims in 2016, for which the applicant had been separately sentenced in 2017.

On 11 May 2023, Judge English of the District Court imposed an aggregate sentence of 20 years imprisonment with a non-parole period of 15 years, commencing 10 June 2020. The applicant sought leave to appeal that sentence on the ground that it was excessive.

  • Whether the sentencing judge failed to apply the principles in Mill v The Queen (1988) 166 CLR 59 when considering the 2017 sentence for related earlier offending against one of the victims.
  • Whether an error in the indicative sentence for count 9 (intimidation) infected the aggregate sentence so as to require resentencing.
  • Whether, having found an error capable of affecting the aggregate sentence, the Court of Criminal Appeal should exercise its sentencing discretion afresh and impose a lesser sentence.

Decision

Ground 2: The indicative sentence error

The Crown conceded that the sentencing judge had made a patent error in the indicative sentence for count 9, an intimidation offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The sentencing judge had assessed this offence as falling at the mid-range of seriousness and indicated a term that exceeded the applicable maximum penalty of 5 years imprisonment. The applicant was not required to prove the error actually altered the aggregate sentence. It was sufficient to show the error had the capacity to influence it.

Count 9 was one of 11 offences and was among the less serious matters on the indictment. Nothing in the sentencing judge's reasons indicated the criminality in count 9 had been subsumed by other offences, or that an actual sentence would have been wholly concurrent. Accordingly, the Court could not be satisfied the error had no effect on the aggregate, and ground 2 was established.

Ground 1: The Mill v The Queen issue

Because ground 2 was established and the sentencing discretion had to be re-exercised, it was not strictly necessary to determine ground 1. The Court nonetheless considered the arguments, as they informed the re-exercise of discretion. The 2016 offending against one of the victims went beyond a bare criminal record entry: that victim had given evidence about it at trial. The Court found the sentencing judge could not readily be said to have ignored this material, and that totality considerations, including the 2017 sentence, had to be balanced against other competing factors.

Resentencing

Neither party provided detailed submissions on why a lesser sentence was or was not warranted. The Court noted that this did not permit it to dismiss the appeal simply because the applicant had failed to persuade it a lesser sentence was warranted, citing DPP (Cth) v De La Rosa and Kentwell v The Queen. The Court considered maximum penalties, standard non-parole periods, the objective seriousness of each offence, the applicant's subjective circumstances, sentencing statistics, and comparable cases.

The applicant's offending was characterised as extremely serious, involving sustained abuse of a position of parental trust. His lengthy criminal history and the fact that he was on conditional liberty during at least some of the offending were significant aggravating factors. The Court accepted his deprived upbringing reduced his moral culpability to some degree, consistent with Bugmy v The Queen. However, his continued denial of the offences, absence of remorse, and apparent lack of insight negatively affected his prospects of rehabilitation. The Court's own indicative sentences were generally shorter than those of the sentencing judge, but it would have allowed greater notional cumulation, particularly between the offences against each complainant separately. In the result, the Court was not satisfied that any lesser aggregate sentence was warranted, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An error in an indicative sentence for a particular count can establish error in an aggregate sentence, but not automatically. The question is whether the error had the "capacity to influence" the aggregate sentence, not whether it demonstrably altered it.
  • Where an indicative sentence cannot be said to have been wholly absorbed into concurrent components, and the sentencing judge's reasons do not address subsumption, a court of appeal cannot readily conclude the error was harmless.
  • Under DPP (Cth) v De La Rosa and Kentwell v The Queen, where a sentencing discretion must be re-exercised, an appeal cannot be dismissed merely because the applicant has not affirmatively persuaded the appellate court that a lesser sentence is warranted.
  • A significantly deprived upbringing may reduce moral culpability under Bugmy v The Queen, but its mitigatory weight is assessed alongside other factors, including an offender's criminal history, conditional liberty at the time of offending, and prospects of rehabilitation.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the original 20-year aggregate sentence with a 15-year non-parole period remained appropriate, notwithstanding that the court's own indicative sentences for individual counts were generally lower than those of the sentencing judge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66A
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21B

Cases
- Mill v The Queen (1988) 166 CLR 59
- Benn v R [2023] NSWCCA 24
- Newman (a pseudonym) v R [2019] NSWCCA 157
- AJ v R [2023] NSWCCA 158
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Kentwell v The Queen (2014) 252 CLR 601
- Bugmy v The Queen (2013) 249 CLR 571
- Munda v Western Australia (2013) 249 CLR 600
- Hoskins v R [2021] NSWCCA 169
- Lloyd v R [2022] NSWCCA 18
- Ibrahim v R [2022] NSWCCA 134
- WAP v R [2017] NSWCCA 21
- Hoare v The Queen (1989) 167 CLR 348
- Lodhi v R (2007) 179 A Crim R 470
- R v Mostyn (2004) 145 A Crim R 304