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Court of Criminal Appeal 21 August 2024

R v Jackson

[2024] NSWCCA 156

Sexual offences
CRIME SENTENCING APPEAL BY CROWN AGAINST SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT WHETHER SENTENCE MANIFESTLY INADEQUATE APPEAL ALLOWED

Citation: R v Jackson [2024] NSWCCA 156
Court: Court of Criminal Appeal, NSW
Date: 21 August 2024
Judge(s): Kirk JA, Campbell J, McNaughton J (McNaughton J delivered the principal judgment; Kirk JA and Campbell J agreed)

Background

The respondent was convicted by jury of four counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), an offence carrying a maximum of 14 years' imprisonment and a standard non-parole period of seven years. He was acquitted of an alternative count of aggravated sexual intercourse without consent. The offending occurred at a rural property near Goulburn on the first night the then-19-year-old victim had ever met the respondent, who was 62 years old at the time.

The victim had travelled to the farm with her brother's girlfriend after being collected from Goulburn train station. The respondent had provided her a room for the night. After she made clear she was not interested in his sexual advances during an evening conversation, she went to bed. The respondent later entered her room and committed four separate acts of sexual intercourse without her consent, while she said no and resisted.

In the District Court, Williams SC DCJ sentenced the respondent on 22 February 2024 to an aggregate term of 3 years and 6 months' imprisonment with a non-parole period of 1 year and 10 months. The ratio of non-parole period to head sentence was approximately 52.4 per cent. The Crown appealed on the sole ground that the aggregate sentence was manifestly inadequate.

  • Whether the aggregate sentence imposed was manifestly inadequate, thereby establishing the error required to ground a Crown appeal.
  • Whether the Court's residual discretion to decline to intervene should be exercised in favour of the respondent, notwithstanding a finding of manifest inadequacy.
  • What sentence should be imposed on resentencing.

Decision

Manifest inadequacy. The Court confirmed that manifest inadequacy is itself a conclusion and does not require identification of a specific discrete error. Where a sentence is so inadequate as to constitute an affront to the administration of justice and to risk undermining public confidence in the criminal justice system, judicial intervention is warranted. The Court found that all four offences were serious examples of sexual intercourse without consent, that there were no particularly compelling subjective factors in the respondent's favour, and that the combination of low indicative sentences and high levels of notional concurrency meant the aggregate failed to reflect the total criminality of the offending. Taking into account the legislative guideposts, including the standard non-parole period, and the absence of any entitlement to a statutory discount, the sentence was held to be manifestly inadequate.

Residual discretion. On a Crown appeal, even after establishing error, the Court retains a residual discretion not to intervene. The respondent raised his age (mid-sixties), health, and his prior custody of two children as reasons to exercise that discretion in his favour. The Court rejected each submission. His age was not considered "advanced" in any persuasive sense, no health evidence was put forward that affected the discretion, and his custody arrangements prior to arrest were irrelevant to the question. The Court weighed the swift institution of the appeal, the seriousness of the offending, the total absence of remorse or contrition, and the need for general deterrence, specific deterrence, punishment and denunciation. Those considerations combined to satisfy the Court that it should intervene.

Resentencing. The Court adopted the sentencing judge's factual findings and had regard to the victim's vulnerability, the significant age and power differential (43 years), the geographical isolation of the farm (approximately 40 minutes from town), the respondent's subjective circumstances, comparable cases, and sentencing statistics. The Crown conceded there was a basis to find special circumstances, arising from mental health issues identified in a psychiatric report and the respondent's anxiety concerning separation from his two youngest children. The Court accepted that and adjusted the statutory ratio accordingly. It imposed an aggregate sentence of 6 years' imprisonment with a non-parole period of 4 years.

Orders Made

  • The Crown appeal was allowed.
  • The sentence imposed in the District Court on 22 February 2024 was quashed.
  • In lieu thereof, the respondent was sentenced to 6 years' imprisonment with a non-parole period of 4 years, commencing 16 November 2023.
  • The respondent's first eligibility for release to parole is 15 November 2027.

Key Takeaways

  • Manifest inadequacy does not require identification of a specific sentencing error: where a sentence is so low as to affront the administration of justice and undermine public confidence in the criminal justice system, that conclusion alone grounds appellate intervention.
  • In assessing an aggregate sentence for multiple counts of sexual offending, the combination of low indicative sentences and high levels of notional concurrency can itself produce a result that fails to reflect total criminality, even where each individual indicative term appears moderate in isolation.
  • The Court of Criminal Appeal confirmed that a respondent's age in their mid-sixties does not, without more, constitute "advanced age" sufficient to enliven the residual discretion against Crown interference.
  • Under the residual discretion framework, the absence of remorse, the seriousness of the offending, the swift institution of an appeal, and the sentencing objectives of deterrence, punishment and denunciation are all relevant considerations weighing in favour of intervention.
  • Geographical isolation and a significant age and power differential between the offender and a young adult victim are aggravating features that bear on the objective seriousness of sexual offending in the sentencing calculus.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44

Cases:
- House v The King (1936) 55 CLR 499
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Dinsdale v The Queen (2000) 202 CLR 321
- Bugmy v The Queen (2013) 249 CLR 571
- CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346
- Muldrock v The Queen (2011) 244 CLR 120
- R v Gavel [2014] NSWCCA 56
- Cahyadi v R [2007] NSWCCA 1
- R v O'Connor [2014] NSWCCA 53
- Kelly v R [2022] NSWCCA 189
- Stein v R [2023] NSWCCA 324
- R v Shortland [2018] NSWCCA 34
- Dionnet v R [2009] NSWCCA 85
- R v Simpson (2001) 53 NSWLR 704
- AA v R [2024] NSWCCA 132
- R v Hernando [2002] NSWCCA 489
- R v Songcuan (No 3) [2023] NSWSC 183