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Court of Criminal Appeal 6 September 2024

Du Plessis v R

[2024] NSWCCA 164

Sexual offences

Citation: Du Plessis v R [2024] NSWCCA 164
Court: Court of Criminal Appeal
Date: 6 September 2024
Judge(s): N Adams J; Ierace J; Sweeney J

Background

The applicant was convicted at trial of two counts of aggravated sexual intercourse without consent under s 61J(1) of the Crimes Act 1900 (NSW). The circumstance of aggravation in each count was that the complainant was under 16 years of age; she was 15 years and nine months old at the time. The offences occurred in the early hours of the morning on a beach at Lennox Head, after the applicant had offered to help the complainant when she was stranded and distressed outside a bowling club, having been stood up by a friend with a dead phone battery.

The applicant was sentenced in the District Court to an aggregate term of 11 years and 6 months imprisonment, with a non-parole period of 8 years. He sought leave to appeal out of time on two grounds: that the sentencing judge wrongly treated the complainant's vulnerability as an aggravating factor, and that the sentence was manifestly excessive.

Legal Issues

  • Whether the sentencing judge erred by finding the complainant was vulnerable and treating that vulnerability as an aggravating factor, given that the complainant's age was already an element of the offence
  • Whether vulnerability arising solely from the circumstances of the offence, rather than from a class of victim recognised under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW), can nonetheless be treated as relevant to objective seriousness
  • Whether the aggregate sentence of 11 years and 6 months was manifestly excessive

Decision

Ground 1: Vulnerability as an aggravating factor

The Court held that the sentencing judge's finding of vulnerability was open on the agreed evidence. At the time of the offending, the complainant was isolated with the applicant on a dark beach in the early hours of the morning, aged 15 and accompanied by a 47-year-old man who had spent the evening cultivating her trust by providing assistance and shelter (at [51]). The Court rejected the argument that this finding amounted to impermissible double-counting with the statutory circumstance of aggravation based on age.

The Court confirmed that s 21A(2)(l) applies to classes of victims defined by characteristics such as occupation, extreme youth or age, or geographical isolation, and not to vulnerability arising purely from the particular circumstances of an offence (at [62]). However, the Court also confirmed that s 21A(2)(l) is not exhaustive. A sentencing judge commits no error by treating circumstantial vulnerability as relevant to the objective seriousness of an offence, even when it falls outside the statutory list (at [64]). The sentencing judge had made her findings on vulnerability in the orthodox context of assessing objective seriousness, without purporting to invoke s 21A(2)(l), and no error was established (at [70]). Ground 1 was dismissed (at [71]).

Ground 2: Manifest excess

The Court upheld this ground. While acknowledging the considerable objective seriousness of the offences and the applicant's high moral culpability, the Court found that the sentencing judge had not given sufficient weight to significant countervailing factors (at [96]). These included: the offences were unplanned; the complainant was three months short of 16, making the statutory aggravation a less serious instance of that type; the applicant had a strong subjective case, with good character, no relevant prior convictions, a low assessed risk of reoffending, and reasonable prospects of rehabilitation; and there was no particular need for specific deterrence (at [81]).

Comparing the sentence with analogous cases decided by the Court, including sentences for offences involving younger complainants, greater premeditation, and weaker subjective cases, the Court was satisfied the aggregate sentence was unreasonable (at [96]-[97]). The Court reduced the aggregate sentence by 18 months, to 10 years imprisonment with a non-parole period of 7 years (at [101]-[102]).

Orders Made

  • Leave granted to file notice of appeal out of time
  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 14 April 2023 quashed
  • In lieu thereof, the applicant sentenced to an aggregate term of imprisonment of 10 years, commencing 8 December 2022 and expiring 7 December 2032, with a non-parole period of 7 years expiring 7 December 2029

Key Takeaways

  • A sentencing court does not engage in impermissible double-counting when it treats a complainant's vulnerability, arising from the specific circumstances of an offence, as relevant to objective seriousness, even where the victim's age is already a statutory element of that offence (at [64], [70]).

  • Section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 identifies classes of victims whose vulnerability operates as a mandatory aggravating factor, but that provision is not exhaustive. Circumstantial vulnerability that falls outside those classes can still legitimately inform the assessment of objective seriousness (at [64]).

  • In dismissing Ground 1, the Court confirmed the longstanding principle that the list of aggravating and mitigating factors in s 21A is not exclusionary, citing consistent authority including Ali v R, Martin v R, and Archer v R (at [64]-[70]).

  • Where a complainant's age under the statutory threshold is at the upper end of the range covered by that threshold, a sentencing court is entitled to treat the circumstance of aggravation as a less objectively serious instance of that type, and this must be weighed in the overall sentencing exercise (at [81]).

  • Comparative sentences, while not determinative on their own, serve a legitimate function in confirming and demonstrating a conclusion of manifest excess already reached through consideration of objective and subjective factors (at [97]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61 J(1), 61J(2)(d), 61M(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A
- Crimes (Sentencing Procedure) Amendment Act 2006 (NSW)
- Crimes (Sentencing Procedure) Amendment (General Sentencing Principles) Act 2002 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Rural Crime Legislation Amendment Act 2017 (NSW)

Cases
- Ali v R [2010] NSWCCA 35
- Archer v R [2017] NSWCCA 151
- Christie v R [2012] NSWCCA 228
- Conte v R [2018] NSWCCA 209
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- DL v R [2020] NSWCCA 164
- Drew v The Queen (2016) 264 A Crim R 1; [2016] NSWCCA 310
- He v Sun [2021] NSWCA 95
- JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Katsis v R [2018] NSWCCA 9
- Longworth v The Queen (2017) 266 A Crim R 551; [2017] NSWCCA 119
- Martin v R [2016] NSWCCA 273
- Morrison v R [2022] NSWCCA 158
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Brown [2012] NSWCCA 199
- R v Williams [2005] NSWCCA 99
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36