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9
Court of Criminal Appeal 25 October 2024

Dorsett v R

[2024] NSWCCA 192

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE RESENTENCE

Citation: Dorsett v R [2024] NSWCCA 192
Court: NSW Court of Criminal Appeal
Date: 25 October 2024
Judges: Harrison CJ at CL; N Adams J; Dhanji J

Background

The applicant pleaded guilty in the District Court to eight child sexual assault offences against four victims aged between 12 and 15 years. The offending took place over an 18-month period when the applicant was aged between 21 and 23 years. The offences included multiple counts of sexual intercourse with children aged 14 to 16, one count of intentional touching of a 12-year-old, and one count of sexual intercourse with a child under 14.

Judge King SC sentenced the applicant on 9 June 2023 using the aggregate sentencing procedure under s 53A of the Crimes (Sentencing Procedure) Act 1999. The aggregate sentence was 10 years' imprisonment with a non-parole period of 5 years, commencing from the date of arrest. A 25% discount applied for the utilty of the guilty pleas.

The applicant sought leave to appeal against severity, arguing errors in the indicative sentences assigned to each individual charge and, in the alternative, that the remarks on sentence failed to adequately expose the reasoning process.

  • Whether the indicative sentences reflected a failure to consider the objective seriousness of each individual offence separately
  • Whether the indicative sentences indicated undue weight being given to maximum penalties, or disproportionate reliance on an offence listed on a Form 1 schedule
  • Whether the sentencing remarks inadequately exposed the reasoning used to arrive at the indicative and aggregate terms, raising a real possibility of legal error
  • Whether the aggregate sentence was manifestly excessive in light of the applicant's subjective circumstances
  • As a subsidiary issue: whether an indicative sentence affected by latent (inferred) error, as distinct from a patent (identifiable) error, can ground an appeal against an aggregate sentence where the aggregate itself is not manifestly unreasonable

Decision

The Court of Criminal Appeal granted leave and allowed the appeal on Ground 1. N Adams J, with whom Harrison CJ at CL agreed, found that the sentencing judge had failed to individually assess the criminality of each offence when fixing the indicative sentences. This constituted error in the construction of the aggregate sentence.

A particular concern was the approach taken to Charges 1 through 5 and Charge 8. The indicative sentences for those charges appeared largely uniform despite the offences involving different conduct and different victims. The Court found this uniformity was inconsistent with the requirement that a sentencing judge genuinely and separately evaluate the objective seriousness of each discrete offence before setting an indicative term.

Given the finding of error on Ground 1, the Court proceeded to resentence. The Court fixed lower indicative sentences for the individual charges and, accepting the sentencing judge's finding of special circumstances, applied a 60% ratio between the non-parole period and the head sentence rather than the standard 75%. This produced a lower aggregate outcome than at first instance.

Ground 2 (manifest excess) did not require separate determination in light of the successful appeal on Ground 1. On the subsidiary question about latent versus patent error, Dhanji J noted that the issue did not strictly arise on the facts but restated his view, expressed in earlier decisions, that no principled distinction exists between the two. His Honour acknowledged, however, that this is not the prevailing view of the Court.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Judge King SC on 9 June 2023 quashed
  • Applicant resentenced to an aggregate term of imprisonment of 8 years, commencing 4 November 2021 and expiring 3 November 2029
  • Non-parole period of 4 years and 9 months, expiring 3 August 2026, with eligibility for release on parole from that date

Key Takeaways

  • The Court of Criminal Appeal confirmed that when imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, a sentencing judge must individually assess the objective seriousness and criminality of each discrete offence when fixing indicative sentences. A uniform or undifferentiated approach across offences involving different conduct and victims constitutes error.
  • Largely identical indicative sentences for offences that differ materially in their circumstances can itself signal a failure to engage in the required individual assessment, providing a basis for appellate intervention.
  • In resentencing, the Court applied a 60% ratio between the non-parole period and head sentence after accepting a finding of special circumstances, demonstrating that the precise ratio is not fixed and can be adjusted where the standard 75% ratio would not adequately reflect the seriousness of the overall offending.
  • Dhanji J restated a minority position that there is no principled basis for distinguishing between latent error (where error in an indicative sentence is established by inference) and patent error (where it is directly identifiable) when determining whether an appeal against an aggregate sentence can be sustained. His Honour acknowledged this view has not prevailed in the Court.
  • Under the aggregate sentencing framework, error in the construction of indicative sentences can vitiate the aggregate sentence and require resentencing by the appellate court, even where the aggregate term is not independently assessed as manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(1), 66C(3), 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2A), 53A, 54B(6), Pt 4 Div 1A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases:
- AJ v R [2023] NSWCCA 158
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Benn v R [2023] NSWCCA 24
- Connell v R [2020] NSWCCA 352
- DH v R [2022] NSWCCA 200
- Elias v R; Issa v R (2013) 248 CLR 483; [2013] HCA 31
- FL v R [2020] NSWCCA 114
- Franklin v R [2016] NSWCCA 319
- Ibbotson v R [2020] NSWCCA 92
- JM v R [2014] NSWCCA 297
- Kennedy v R [2008] NSWCCA 21; (2008) 181 A Crim R 185
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kerr v R [2016] NSWCCA 218
- KS v R [2024] NSWCCA 147
- Lee v R [2016] NSWCCA 146
- Lee v R [2020] NSWCCA 244
- Lee v R [2023] NSWCCA 70
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mueller v R [2015] NSWCCA 292
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- RA v R [2024] NSWCCA 145