AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 2 August 2024

Director of Public Prosecutions (NSW) v Q (a pseudonym)

[2024] NSWCCA 139

Sexual offencesAssault & violenceDrugs
CRIME F ORM 1 OFFENCES A SINGLE VICTIM WHETHER THE SPECIFICATION OF THE NON PAROLE PERIOD IN STANDARD NON VICTIM IMPACT STATEMENT

Citation: Director of Public Prosecutions (NSW) v Q (a pseudonym) [2024] NSWCCA 139
Court: Court of Criminal Appeal, New South Wales
Date: 2 August 2024
Judge(s): Adamson JA, Price AJA, Garling J

Background

The respondent pleaded guilty in the District Court to eight counts of sexual offences against a single child victim, committed over approximately six months in late 2019 and early 2020. At the time, the victim was aged 14 to 15 and the respondent was aged 24 to 25. The offences occurred in the context of a purported relationship and included six counts of aggravated sexual intercourse with a child (s 66C(4) of the Crimes Act 1900 (NSW)) and two counts of sexual intercourse with a child (s 66C(3)). Six further offences, including additional sexual offences and a common assault, were placed on a Form 1 (meaning they were taken into account at sentencing without separate conviction).

The offending escalated significantly in seriousness over the relevant period. Later offences involved the use of violence, emotional manipulation, degradation of the victim, and injecting the victim with methamphetamine. Many of the later offences were committed while the respondent was subject to community corrections orders and an apprehended domestic violence order (ADVO) involving the victim.

The District Court imposed an aggregate sentence of 6 years 4 months' imprisonment with a non-parole period of 4 years 3 months. The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), contending the aggregate sentence was manifestly inadequate.

  • Whether the aggregate sentence of 6 years 4 months was manifestly inadequate, having regard to the totality of the criminality involved.
  • Whether the indicative sentences adequately reflected the Form 1 offences and the relevant statutory aggravating factors, including offending while subject to an ADVO (s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) and offending on the premises of the victim's home (s 21A(2)(eb)).
  • Whether the failure to specify a non-parole period in certain indicative sentences for standard non-parole period offences was a mere technicality.
  • Whether the court's residual discretion to decline to intervene on a Crown appeal should be exercised.
  • What the appropriate re-sentence should be, taking into account the respondent's personal circumstances, assistance to police, and the impact of the offending on the victim.

Decision

The Court of Criminal Appeal allowed the appeal, finding unanimously that the aggregate sentence was manifestly inadequate. Price AJA (with Adamson JA and Garling J agreeing) held that the aggregate sentence failed to reflect the totality of the criminality involved, given the number and seriousness of the offences, their escalating nature, and the vulnerability of the victim. The Court found that several of the indicative sentences, particularly for the most serious counts, were individually too low and did not adequately account for the Form 1 offences, the aggravating circumstances, or the need for both specific and general deterrence.

The Court also found that the Director had discharged the onus of demonstrating the residual discretion should not be exercised in the respondent's favour. The gap between the sentence imposed and what was appropriate was sufficiently large that declining to intervene would not serve the interests of justice.

In re-sentencing, the Court weighed a range of factors. These included the respondent's relatively young age and emotional immaturity, his substance use, criminal history, the fact that many offences were committed while on conditional liberty, and his assistance to police. The Court also took into account the profound and ongoing impact of the offending on the victim, as reflected in the victim impact statement. A combined discount of 25% for the guilty pleas and assistance was applied.

The Court replaced the original sentence with an aggregate term of 11 years' imprisonment with a non-parole period of 7 years 4 months, representing an increase of approximately 4 years 8 months on the head sentence and approximately 3 years 1 month on the non-parole period.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an aggregate sentence must reflect the totality of all criminality, including the cumulative weight of Form 1 offences; a failure to do so can render the sentence manifestly inadequate even where individual indicative sentences are not each independently challenged.
  • Where offending escalates significantly in seriousness over time, particularly involving violence, exploitation, and the vulnerability of the victim, indicative sentences for the most serious counts must reflect that escalation.
  • Committing offences while subject to an ADVO and community corrections orders constitutes a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and must be given adequate weight in sentencing.
  • In a Crown appeal, the residual discretion to decline to intervene will not be exercised where the inadequacy of the sentence is substantial enough that allowing it to stand would not serve the interests of justice, regardless of mitigating factors already taken into account by the sentencing court.
  • Personal mitigating factors, including youth, emotional immaturity, and substance use, retain their relevance on re-sentencing by an appellate court, but they do not operate to reduce a sentence below the range appropriate to reflect the objective gravity of the conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61J, 66C(3), 66C(4)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 16
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 21A(2)(j), 21A(2)(g), 23(2), 25AA, 25AA(3), 32, 37, 53A(2)(b), 54B
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen (2013) 231 A Crim R 413; [2013] NSWCCA 115
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Mill v The Queen (1988) 166 CLR 50; [1988] HCA 70
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 38
- DH v R [2022] NSWCCA 200
- Grange v R [2023] NSWCCA 6
- Kliendienst v R [2020] NSWCCA 98
- Lee v R [2020] NSWCCA 244
- LN v R [2020] NSWCCA 131
- McTague v R [2020] NSWCCA 83
- Aryal v R [2021] NSWCCA 2
- EG v R [2015] NSWCCA 21
- DBW v R [2007] NSWCCA 236