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16
Court of Criminal Appeal 9 August 2024

RA v R

[2024] NSWCCA 149

Sexual offences
CRIME APPEAL AGAINST SENTENCE GRANDSON APPLICATION OF MK V R RB V R (2023) 112 NSWLR 96 [2023] NSWCCA 180

Citation: RA v R [2024] NSWCCA 149
Court: NSW Court of Criminal Appeal
Date: 9 August 2024
Judge(s): Adamson JA; Wilson J; Dhanji J

Background

The applicant, referred to by the pseudonym RA, was the father of three children and the step-grandfather of another child. In late 2020, it emerged that he had sexually abused his step-grandson over a period in 2020, and had earlier committed a series of sexual offences against his own three children between 1983 and 1996. He pleaded guilty to charges across two separate indictments.

On 30 September 2022, the District Court sentenced the applicant to an aggregate term of 20 years imprisonment with a non-parole period of 13 years. The sentencing judge found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which accounts for the non-standard ratio between the non-parole period and the total term.

The applicant sought leave to appeal against that sentence on two grounds: that the aggregate sentence was manifestly excessive, and that the sentencing judge had misapplied the law in relation to the offences of maintaining an unlawful sexual relationship with a child under s 66EA of the Crimes Act 1900 (NSW).

  • Whether the aggregate sentence of 20 years was manifestly excessive, having regard to the indicative sentences given for individual offences on both indictments
  • Whether the sentencing judge erred in her approach to sentencing for the s 66EA offences, specifically in relation to the construction of that provision as discussed in R v RB [2022] NSWCCA 142

Decision

Ground 1 (Manifest excess): The majority, comprising Wilson J and Adamson JA, found that the indicative sentences were not erroneously high and that the aggregate sentence was not manifestly excessive. It was open to the sentencing judge to make the findings she did, and the sentence could not be characterised as unfair or unjust.

Dhanji J agreed the appeal should be dismissed but for different reasons on ground 1. His Honour found that the indicative sentences for counts 1 and 2 of the second indictment, which implied a starting point of over 20 years each, and a notional starting point of 10 years for count 3, were excessive and represented an error with capacity to affect the overall sentence. However, upon a fresh exercise of the sentencing discretion, Dhanji J concluded the total sentence would not be any less than that imposed by the sentencing judge, so the appeal was still dismissed.

Ground 2 (Section 66EA approach): The Court unanimously rejected this ground. Wilson J, with Adamson JA agreeing, held that the gravamen of a s 66EA offence is the maintenance of an unlawful sexual relationship with a child. A sentencing court is not required to identify particularised individual sexual acts and impose a sentence referable only to those acts. Dhanji J agreed that the applicant had not been sentenced for offences for which he was not convicted, and that the determination of relevant facts is governed by orthodox sentencing principles. This approach was also consistent with the Court's subsequent decision in MK v R [2024] NSWCCA 127, which rejected the same argument advanced by the same counsel.

Adamson JA added brief observations noting that while the Court discourages submissions without merit, the instinctive synthesis method of sentencing makes it understandable that counsel will challenge discrete sentencing factors. Her Honour declined to express a view on the differences in reasoning between Wilson and Dhanji JJ, noting no disagreement existed on the outcome.

Orders Made

  • Leave to appeal granted on ground 1
  • Appeal dismissed

Key Takeaways

  • Under s 66EA of the Crimes Act 1900 (NSW), the core element of the offence is maintaining an unlawful sexual relationship with a child. A sentencing court is not required to identify and sentence separately for particularised individual sexual acts within that relationship.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the approach in R v RB [2022] NSWCCA 142 to s 66EA offences does not require the identification of discrete particularised conduct as the basis for the sentence.
  • The majority and Dhanji J reached the same result on ground 1 by different paths: the majority found no error in the indicative sentences, while Dhanji J identified errors in certain indicative terms but concluded a resentencing exercise would produce no lesser total sentence.
  • Differences in judicial reasoning about alleged errors in indicative sentences did not affect the outcome where all members of the Court agreed the aggregate sentence should stand.
  • The Court noted that the same argument on s 66EA sentencing had been raised and rejected in the contemporaneous decision of MK v R [2024] NSWCCA 127, further confirming the settled approach.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66A, 66C, 66DA, 66EA, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 19, 21A, 21B, 23, 25AA, 25D, 32, 33, 44, 53A
- Criminal Appeal Act 1912 (NSW), s 6
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Law Consolidation Act 1935 (SA), s 50

Key Cases:
- MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180
- R v RB [2022] NSWCCA 142
- MK v R [2024] NSWCCA 127
- Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
- Xerri v The King [2024] HCA 4
- CMB v The Attorney General for New South Wales (2016) 256 CLR 346; [2015] HCA 9
- 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
- Cheung v Queen (2001) 209 CLR 1; [2001] HCA 67
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37