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Court of Criminal Appeal 2 August 2024

NG v R

[2024] NSWCCA 142

Sexual offences
CRIME APPEAL AGAINST SENTENCE DATED THOSE OFFENCES APPEAL AGAINST SENTENCE LEAVE TO APPEAL OUT OF TIME SOUGHT DELAY DUE TO COVID PANDEMIC

Citation: NG v R [2024] NSWCCA 142
Court: Court of Criminal Appeal, New South Wales
Date: 2 August 2024
Judge(s): Adamson JA; Wilson J (primary reasons); Faulkner J

Background

The applicant, referred to by the pseudonym NG to protect victim identities, pleaded guilty in April 2021 to three historical sexual assault offences. Two offences involved children: aggravated indecent assault of a 10-year-old girl (2005) and sexual intercourse with a child under 10 years (1998). The third offence was sexual intercourse without consent against an adult woman (2002). All three offences occurred at a rural property in Bringelly where the applicant lived and where victims had attended in the context of family or social connections.

The applicant had previously been sentenced in 2016 for two separate sets of child sexual offending. At the time of the new sentence, he was already serving an aggregate term of 12 years and 7 months imprisonment with a non-parole period of 9 years and 6 months. On 20 August 2021, Judge Culver of the District Court imposed a new aggregate sentence of 14 years imprisonment with a non-parole period of 9 years, commencing 17 February 2022.

The applicant sought leave to appeal out of time, citing the impact of COVID-19 pandemic lockdowns and associated delays in obtaining legal assistance. The Notice of Appeal was filed in May 2024, approximately two years and eight months after sentencing.

  • Whether the sentencing judge erred in her assessment of the objective seriousness of each offence
  • Whether the aggregate sentence of 14 years was manifestly excessive
  • Whether imposing the new sentence to run consecutively upon the existing sentence breached the principle of totality (the requirement that the overall sentence not be disproportionate to the totality of the offending)
  • Whether an extension of time to file the appeal should be granted, given the delay and the COVID-19 pandemic context

Decision

Objective seriousness: The Court found no error in Judge Culver's assessment of the objective seriousness of each offence. The three offences involved a child as young as four years old, a sleeping adult woman in a position of vulnerability, and a 10-year-old girl who was a guest at the property. The Court accepted that the sentencing judge had approached the assessment of each offence appropriately and within the range available.

Manifest excess: The Court rejected the contention that the aggregate sentence of 14 years was manifestly excessive. Taking into account the indicative sentences for each offence (ranging from 3 years 9 months to 9 years), the gravity of the conduct, and the applicant's extensive history of sexual offending against children, the Court was satisfied the sentence fell within the permissible range.

Totality: The Court also rejected the totality ground. The principle of totality requires a sentencing court to ensure that the combined effect of concurrent or consecutive sentences is not crushing or disproportionate to the overall criminality. Here, the new sentence commenced after a portion of the existing sentence had been served. The Court was satisfied the sentencing judge had properly considered the relationship between the two sentences and the overall period the applicant would spend in custody.

Extension of time: Although the Court accepted that COVID-19 pandemic conditions made imprisonment considerably harder, it noted that those conditions did not make it impossible to file a Notice of Intention to Appeal, and that the Court's ordinary experience was contrary to that proposition. There was also an unexplained gap between the applicant's initial request for legal aid assistance and steps being taken to obtain materials. Nevertheless, the Court granted the extension in light of the overall sternness of the sentence being served. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Extension of time to file the application for leave to appeal granted to 9 May 2024
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's assessment of objective seriousness across the three offences, which involved victims ranging in age from four to adult and a pattern of opportunistic abuse within family and social settings.
  • A sentence imposed on top of an existing custodial term does not automatically breach the totality principle; the sentencing court must consider the combined effect, and where that analysis has been properly undertaken, an appellate court will not intervene.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence of 14 years for three serious historical sexual offences, imposed upon an offender already serving a substantial term for prior sexual offending, fell within the acceptable range.
  • Extensions of time for sentence appeals will not be granted automatically on COVID-19 grounds alone; the Court noted that pandemic-era lockdowns did not, as a matter of ordinary experience, prevent inmates from filing a Notice of Intention to Appeal.
  • Where delay in prosecuting an appeal is partly attributable to systemic delays in the legal aid process rather than personal fault, that factor may be weighed in favour of granting an extension, even where the overall explanation for delay remains inadequate.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA
- Crimes Act 1900 (NSW), ss 61I, 61M, 66A, 578A

Cases:
- NG v R [2017] NSWCCA 161
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- BM v R [2023] NSWCCA 68
- Bravo v R [2015] NSWCCA 302
- Faehringer v R [2017] NSWCCA 248
- Higgins v R [2020] NSWCCA 169
- JG v R [2023] NSWCCA 33
- Martellotta v R [2021] NSWCCA 168
- McDowall v R [2019] NSWCCA 29
- Mills v R [2017] NSWCCA 87
- Mulato v R [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v CTG [2017] NSWCCA 163
- R v MAK, R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- Thorp v R [2022] NSWCCA 180
- Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266