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Court of Criminal Appeal 18 October 2024

Tafra v R

[2024] NSWCCA 190

Sexual offencesDrugs
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS

Citation: Tafra v R [2024] NSWCCA 190
Court: Court of Criminal Appeal, NSW
Date: 18 October 2024
Judges: Stern JA, Cavanagh J, Sweeney J

Background

The applicant was involved in drug dealing. After believing a victim and her companions had stolen methamphetamine from him, he orchestrated a plan to recover the drugs he suspected the victim had secreted inside her body. He arranged for the victim to be detained at a house and for two female co-offenders to attend there specifically to extract the drugs.

The victim was detained, stripped naked, subjected to physical violence, and forced to expose herself for inspection. The co-offenders performed two separate acts of penetration while searching for the drugs: one involving manual penetration of the vagina, and another involving the insertion of wire into the anus. No drugs were found.

The applicant pleaded guilty to two counts of aggravated sexual intercourse without consent, in company, under s 61JA(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. He was sentenced on a joint criminal enterprise basis as the instigator, organiser, planner, and director of the offending. The sentencing judge imposed an aggregate sentence of 14 years and 6 months with a non-parole period of 8 years and 6 months.

  • Whether the aggregate sentence was manifestly excessive
  • Whether the indicative sentences of 11 years and 4 months per count were too high
  • Whether the degree of accumulation in the aggregate sentence was excessive
  • Whether there was unjustified disparity between the applicant's sentence and those imposed on the two co-offenders

Decision

The Court of Criminal Appeal dismissed the appeal, finding the sentence was neither unreasonable nor plainly unjust, applying the test for manifest excess established in Dinsdale v The Queen (2000) 202 CLR 321 and Markarian v The Queen (2005) 228 CLR 357.

The Court emphasised the applicant's central role in the offending. He was the instigator, organiser, planner, and instructor of the conduct. He had indicated to co-offenders that it would be necessary to extract the drugs "even if that involved cutting the drugs out of the victim," and he arranged for the co-offenders to attend the premises for precisely that purpose. This placed him at a high level of culpability even though he did not personally perform the physical acts constituting the offences.

The Court rejected the submission that the absence of sexual gratification as a motive reduced the seriousness of the conduct. Each offence involved significant pain, terror, humiliation, degradation, and serious violence, with the potential to cause real physical damage. The Court noted that sexual intercourse under s 61HA of the Crimes Act includes penetration by any object manipulated by another person, and the gravity of such offending is not diminished simply because the motivation was something other than sexual.

On the question of disparity, the Court found the difference in sentences between the applicant and the co-offenders was justified by his greater role as the organiser of the offending. Reference to other comparable cases was of limited assistance given the unusual nature of the facts, and the applicant's own counsel ultimately accepted there were no truly comparable cases.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the test for manifest excess requires the sentence to be unreasonable or plainly unjust, not merely severe or higher than what the appellate court itself might have imposed.
  • The absence of sexual gratification as a motive does not reduce the seriousness of offending under s 61JA of the Crimes Act 1900 (NSW). The gravity of the conduct is assessed by reference to the harm, humiliation, and violence inflicted on the victim.
  • Under s 61HA of the Crimes Act, sexual intercourse includes penetration by any object manipulated by another person, and this definition applies regardless of the perpetrator's purpose.
  • A participant in a joint criminal enterprise who instigates, organises, and directs the offending conduct can properly receive a higher sentence than co-offenders who physically carried out the acts, where the sentencing court identifies that greater culpability.
  • Past sentences in other cases are a yardstick rather than a fixed range, and differences in facts and circumstances significantly limit the utility of comparative sentencing exercises.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61JA, 61HA

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- Markarian v The Queen (2005) 228 CLR 357
- Lowndes v The Queen (1999) 195 CLR 665
- Franklin v R [2013] NSWCCA 122
- Haines v R [2012] NSWCCA 238
- Imrak v R; Dagdanasar v R [2021] NSWCCA 178
- LG v R [2012] NSWCCA 249
- R v MAK [2005] NSWCCA 369
- PN v R [2024] NSWCCA 86
- Shalida v R [2024] NSWCCA 55