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Court of Criminal Appeal 18 October 2024

Harden v R

[2024] NSWCCA 184

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE COMMONWEALTH AND STATE OFFENCES CHILD ABUSE MATERIAL MULTIPLE VICTIMS

Citation: Harden v R [2024] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 18 October 2024
Judges: Harrison CJ at CL; Hamill J; N Adams J (judgment author)

Background

The appellant pleaded guilty in the Local Court to 105 State offences under the Crimes Act 1900 (NSW) and nine Commonwealth offences under the Criminal Code Act 1995 (Cth). The offending involved sexual abuse of seven boys, who were either relatives of the appellant or members of an under-six soccer team he coached. It also included the production, transmission, and advertisement of child abuse material using multiple messaging platforms, and occurred between late 2017 and May 2020.

The sentencing judge in the District Court imposed an aggregate sentence of 5 years and 6 months for the Commonwealth offences, and a partially accumulated aggregate sentence of 27 years with a non-parole period of 19 years for the State offences. This produced a total effective sentence of 30 years with a non-parole period of 22 years. The appellant had no prior convictions, was entitled to a 40% discount for his guilty plea and post-offence conduct, and had been diagnosed with paedophilia.

The appellant sought leave to appeal on three grounds, contending that the wrong maximum penalty had been applied to certain Commonwealth offences, that the sentencing judge failed to differentiate adequately between the State offences, and that the aggregate sentence for the State offences was manifestly excessive.

  • Whether the sentencing judge applied incorrect maximum penalties to five of the nine Commonwealth offences, and if so, whether that constituted an error requiring resentencing.
  • Whether the sentencing judge failed to differentiate between the individual State offences when imposing indicative sentences, thereby erring in the exercise of the sentencing discretion.
  • Whether the aggregate sentence of 27 years for the State offences was manifestly excessive in all the circumstances.
  • How the totality principle applies when resentencing is required for one group of offences but not the other.

Decision

Ground 1: Wrong maximum penalty for Commonwealth offences. The prosecution provided the sentencing judge with an incorrect maximum penalty for five of the Commonwealth offences, and neither party corrected the error. The Court of Criminal Appeal found that this caused the sentencing proceedings to miscarry. Leave to appeal was granted, the appeal was allowed in part, and the Court exercised its sentencing discretion afresh for the Commonwealth offences. Although the Court indicated it would have imposed somewhat higher indicative sentences on resentencing, it arrived at the same aggregate figure for the Commonwealth group of offences.

Ground 2: Failure to differentiate between State offences. The Court rejected this ground. The sentencing judge had differentiated between counts to the extent the evidence allowed. The Court noted that the material tendered at sentencing lacked detail, a limitation the sentencing judge had herself observed. No appellable error was established.

Ground 3: Manifest excess in the State aggregate sentence. The Court also rejected this ground. The offending was described as prolific, repetitive, and involving an egregious breach of trust in relation to seven children and their families. The appellant's subjective case was limited, and his absence of prior convictions carried no mitigating weight given the circumstances. While the Court acknowledged the aggregate sentence for the State offences was "stern," it was neither unreasonable nor plainly unjust.

Totality and resentencing adjustment. In applying the totality principle across the two groups of offences, the Court varied the commencement date of the State sentence by six months to allow for additional concurrency, reflecting the overlap in criminality between the Commonwealth and State offending. This produced a reduction of six months in the total effective sentence. Hamill J wrote separately to caution against the arithmetical exercise of totalling individual indicative sentences when assessing whether an aggregate sentence properly reflects totality, observing that where many serious offences are involved, the sum of indicative sentences may reach figures bearing no practical relationship to any appropriate aggregate sentence.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed in part.
  • Aggregate sentence for the nine Commonwealth offences (with two additional offences on a s 16BA schedule) confirmed, commencing 8 May 2020 and expiring 7 November 2025.
  • Aggregate sentence for the 105 State offences (with 63 additional offences on a Form 1) of 27 years varied to commence 8 November 2022 and expire 7 November 2049, with a non-parole period of 19 years commencing 8 November 2022 and expiring 7 November 2041.
  • Total effective sentence: 29 years and 6 months commencing 8 May 2020 and expiring 7 November 2049, with a non-parole period of 21 years and 6 months commencing 8 May 2020 and expiring 7 November 2041.
  • Earliest eligible parole date: 7 November 2041.

Key Takeaways

  • An incorrect maximum penalty provided to a sentencing judge by the prosecution, and uncorrected by defence counsel, will cause the sentencing proceedings to miscarry and necessitate resentencing on those offences: Andreata v R [2015] NSWCCA 239 and Benn v R [2023] NSWCCA 24 applied.

  • No error arises from an apparent lack of differentiation between individual offences in indicative sentences where the evidential material placed before the sentencing court was itself undifferentiated or lacking in detail.

  • A "stern" aggregate sentence for prolific, repetitive child sexual offending involving multiple victims and gross breaches of trust is not manifestly excessive where the subjective case is limited and the absence of prior convictions carries no mitigating weight in context.

  • Hamill J emphasised the limited utility of arithmetically totalling individual indicative sentences when assessing an aggregate sentence for manifest excess, particularly where the sum produces numbers bearing no meaningful relationship to an appropriate head sentence. The relevant inquiry remains whether the aggregate sentence properly reflects total criminality.

  • Under the totality principle, where resentencing is required for one group of offences (Commonwealth) but not another (State), the court may adjust the commencement date of the second group to ensure appropriate concurrency is maintained across the total effective sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(1), 66C, 66DA(a), 66DA(b), 66DC(a), 61J, 61M(2), 91G(1)
- Criminal Code Act 1995 (Cth), ss 474.24A(1)(a)(iii), 474.22(1)(a)(iii), 474.22(1)(a)(iv), 474.22A(1), 474.23(1)
- Crimes Act 1914 (Cth), s 16BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), (2), 45(1), 53A(2), 55(1), (2), (4)
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Measures) Act 2020 (Cth)

Key Cases:
- Andreata v R [2015] NSWCCA 239
- Benn v R [2023] NSWCCA 24
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- GG v R [2023] NSWCCA 102
- House v The King (1936) 55 CLR 499
- Markarian v The Queen (2005) 228 CLR 357
- Nguyen v The Queen (2016) 256 CLR 656
- Mill v The Queen (1988) 166 CLR 59
- Kentwell v The Queen (2014) 252 CLR 601
- DL v R (2018) 265 CLR 215