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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
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 intercourse with a child under 16 years, contrary to ss 66C(3) and 66C(4) of the Crimes Act 1900 (NSW). He also had several additional offences taken into account on a Form 1 (that is, offences not separately sentenced but acknowledged and factored into the overall penalty). All offences involved a single victim who was 14 and 15 years old at the time, and the offending spanned approximately seven months in 2019 and into early 2020.

The offending escalated significantly over time. It included the provision of alcohol and illicit drugs to the victim, emotional manipulation, physical violence, anal intercourse causing bleeding, insertion of a bottle into the victim's vaginal canal, and arranging a sexual encounter involving a third party. Police warned the respondent in December 2019 that the victim was 14, obtained an apprehended domestic violence order (ADVO) for her protection, and told him he would be charged if the conduct continued. He reoffended in blatant breach of that ADVO.

The District Court imposed an aggregate sentence of 6 years and 4 months with a non-parole period of 4 years and 3 months. The Director of Public Prosecutions appealed, contending the aggregate sentence was manifestly inadequate.

Legal Issues

  • Whether the aggregate sentence was manifestly inadequate having regard to the totality of the respondent's criminality
  • Whether the indicative sentences for individual counts adequately reflected the objective seriousness of the offending and the Form 1 offences
  • Whether commission of offences while subject to an ADVO constitutes an aggravating factor of being on conditional liberty under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSP Act")
  • Whether the sentencing judge's nomination of non-parole periods for standard non-parole period offences as a "nominal" 50% was an error
  • Whether the offending in the victim's garage was aggravated under s 21A(2)(eb) of the CSP Act as having occurred in the victim's home
  • Whether the judge failed to engage adequately with s 25AA(3) of the CSP Act concerning future trauma to child victims of sexual abuse
  • Whether the residual discretion to decline to intervene should be exercised

Decision

Manifest Inadequacy of the Aggregate Sentence

The Court found that the aggregate sentence fell far short of reflecting the totality of the respondent's criminality (at [154]). The judge had given earnest consideration to the totality principle and the respondent's relative youth and rehabilitation prospects, but had overlooked the obligation to ensure the aggregate sentence reflected the overall seriousness of the conduct as a whole (at [203]). The indicative sentences for counts 5, 6, 7 and 8 did not reflect the criminality involved, and it was difficult to see how the Form 1 offences attached to counts 5, 7 and 8 were reflected in any way in those indicative sentences (at [174]).

ADVO as an Aggravating Factor (Conditional Liberty)

The Court held that an offender subject to an AVO or ADVO is on conditional liberty, and committing offences during the operation of such an order is an aggravating factor under s 21A(2)(j) of the CSP Act (at [176]). The judge had correctly treated the ADVO as aggravating the sentence overall, even if not the objective seriousness of the individual offences. The Court also found this was not double-counting, notwithstanding that the respondent had separately been sentenced in the Local Court for breaching the ADVO (at [178]).

Non-Parole Periods for Standard Non-Parole Period Offences

The sentencing judge described the specification of non-parole periods in indicative sentences for standard non-parole period offences as "just a technicality." The Court rejected that characterisation. Section 54B(4) of the CSP Act imposes a statutory obligation to specify and record an indicative non-parole period for each such offence, and that obligation serves important purposes including transparency and parity (at [194]-[195]). The indicative non-parole periods of 50% were themselves manifestly inadequate (at [196]).

Offending in the Victim's Home

The Court declined to find the s 21A(2)(eb) aggravating factor (offence committed in the victim's home) was established in respect of count 4. The prior sexual offending had occurred in public spaces where the victim was exposed to third parties. The garage setting actually reduced that vulnerability, so the statutory aggravating feature was not made out on these facts (at [184]).

Section 25AA(3) and Future Harm

The Court found it unfortunate that the judge did not explicitly refer to s 25AA(3) of the CSP Act in the sentencing remarks, given that the Crown had raised it in submissions. However, the Court was not persuaded that the judge failed to have regard to the substantial risk of future emotional harm. The victim impact statement was comprehensive and addressed ongoing and future trauma, and the judge carefully considered it (at [188]-[191]).

Residual Discretion

The Court declined to exercise the residual discretion to refrain from intervening. The manifest inadequacy was found to be an affront to the administration of justice. The Court accepted the respondent had taken positive steps in custody but found the need to provide guidance to sentencing courts, and to maintain public confidence in the justice system, overwhelmingly required intervention (at [229]-[230]).

Re-sentencing

On re-sentence, the Court maintained a combined 25% discount, comprising 15% for assistance to police and 7.5% each for past and future assistance (at [239]). The respondent's disadvantaged background and emotional immaturity were accepted as reducing his moral culpability for offences prior to the police warning in December 2019, but his culpability increased significantly after that point (at [240]). Special circumstances were found to exist based on the respondent's need for drug and alcohol supervision upon release, maintaining the judge's ratio of approximately 67% (at [248]).

Orders Made

  • Director's appeal allowed.
  • The aggregate sentence imposed in the District Court on 16 February 2024 is quashed.
  • In lieu thereof, the respondent is sentenced to an aggregate term of 11 years' imprisonment, consisting of a non-parole period of 7 years and 4 months commencing 9 April 2021 and expiring 8 August 2028, with a balance of term of 3 years and 8 months commencing 9 August 2028 and expiring 8 April 2032.
  • The earliest date the respondent will be eligible to be released to parole is 8 August 2028.

Key Takeaways

  • An offender who is subject to an AVO or ADVO is on conditional liberty for the purposes of s 21A(2)(j) of the CSP Act, and committing offences during the currency of such an order is a statutory aggravating factor. This applies even where the offender has separately been sentenced for breaching the order, as that does not constitute double-counting (at [176], [178]).

  • Setting indicative non-parole periods for standard non-parole period offences under s 54B(4) of the CSP Act is a statutory obligation, not a mere formality. Arbitrarily nominating a round percentage without genuine assessment undermines the transparency, guidance, and parity functions that indicative sentences serve (at [194]-[196]).

  • Where an offender's moral culpability escalates markedly after a specific event, such as a direct police warning combined with the service of an ADVO, that escalation must be meaningfully reflected in the indicative sentences for subsequent offending (at [157], [174]).

  • In applying the totality principle, a sentencing court must not allow concern about imposing a "crushing" sentence to obscure the obligation to ensure the aggregate sentence genuinely reflects the overall seriousness of the offender's conduct (at [203]).

  • Under s 25AA(3) of the CSP Act, sentencing courts are required to have regard to the trauma specific to sexual abuse of children. Failure to refer to the provision in sentencing remarks, when it has been raised in submissions, may raise a question of error, even if the court's broader engagement with the victim impact statement can ultimately satisfy the obligation in substance (at [185]-[191]).

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
- Aryal v R [2021] NSWCCA 2
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney General for New South Wales (2015) CLR 346; [2015] HCA 9
- DBW v R [2007] NSWCCA 236
- DH v R [2022] NSWCCA 200
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- EG v R [2015] NSWCCA 21
- Grange v R [2023] NSWCCA 6
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Kliendienst v R [2020] NSWCCA 98
- Lee v R [2020] NSWCCA 244
- LN v R [2020] NSWCCA 131
- McTague v R [2020] NSWCCA 83
- Mill v The Queen (1988) 166 CLR 50; [1988] HCA 70
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 38
- Noonan v R [2021] NSWCCA 35
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Postiglione v the Queen (1977) 189 CLR 29; [1997] HCA 26
- R v Barker [2016] NSWCCA 193
- R v Gavel [2014] NSWCCA 56
- R v Janceski [2005] NSWCCA 288
- R v M.A.K., R v M.S.K. 167 A CrimR 159; [2006] NSWCCA 381
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Tuala [2015] NSWCCA 8
- Ragg v R [2022] NSWCCA 150
- RL v R [2015] NSWCCA 106
- RP v R [2013] NSWCCA 192
- Singh v R [2021] NSWCCA 96
- Su v R [2023] NSWCCA 207
- Trimarchi v R [2019] NSWCCA 189
- Vaughan v R [2020] NSWCCA 3