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Court of Criminal Appeal 18 December 2024

R v Hodson

[2024] NSWCCA 238

Sexual offences
SENTENCING

Citation: R v Hodson [2024] NSWCCA 238
Court: Court of Criminal Appeal
Date: 18 December 2024
Judges: Mitchelmore JA (primary judgment); Fagan J (agreeing, with additional reasons); Dhanji J (agreeing, with additional reasons)

Background

Following a jury trial in the District Court, the respondent was convicted of 12 child sex offences against four victims. The offences occurred over a 15-year period and involved victims aged between 4 and 12 years at the time. The charges included aggravated indecent assault, sexual intercourse with a child, and assault with intent to have sexual intercourse with a child.

In June 2024, the sentencing judge imposed an aggregate sentence of 9 years and 9 months imprisonment with a non-parole period of 6 years and 6 months. Most offences were assessed as falling at or below the mid-range of objective seriousness. The respondent's subjective case relied on his good character, absence of prior convictions, a diagnosis of post-traumatic stress disorder arising from his remand experience, and alcohol use disorder in remission.

The Crown appealed on the single ground that the aggregate sentence was manifestly inadequate, arguing that the indicative sentences failed to reflect the objective seriousness of the offending and that the accumulation of sentences was insufficient given the distinct nature of the offences.

  • Whether the indicative sentences and non-parole periods imposed by the District Court failed to reflect the objective seriousness of the offending across 12 counts
  • Whether the disparity between the indicative non-parole periods and the standard non-parole periods for the relevant offences was adequately explained by the respondent's subjective case
  • Whether the aggregate sentence was unreasonable or plainly unjust, having regard to the modest accumulation of sentences for separate and distinct offences
  • Whether the Court of Criminal Appeal should exercise its residual discretion to intervene and re-sentence, notwithstanding the respondent's adverse custodial experiences

Decision

The Court of Criminal Appeal held unanimously that the indicative sentences were, to varying degrees, erroneously low. Each offence involved a significant age disparity, and several included skin-on-skin contact with victims' genitals and sexual intercourse. The offending involved some planning, use of a position of trust in some instances, and a clear pattern of persistence and escalation in seriousness across victims and over time.

The Court accepted that the respondent's good character and absence of prior convictions warranted some weight, while noting that good character carries reduced significance in cases involving repeated sexual offending against children over an extended period. It also accepted that the respondent's significant trauma suffered in custody justified some reduction in the weight given to specific deterrence. However, these subjective factors did not explain the gap between the sentencing judge's own findings on objective seriousness and the lenient indicative sentences and non-parole periods that resulted.

On the question of accumulation, the Court found that the modest degree to which sentences were accumulated compounded the error. Where offences are separate and distinct, sentences should ordinarily be at least partly cumulative, because a sentence for one offence cannot adequately capture the criminality of another. The resulting aggregate was unreasonable or plainly unjust.

Turning to the residual discretion whether to intervene, the Court acknowledged the respondent's custodial experiences as a powerful factor against re-sentencing. Dhanji J expressed the concern plainly: offenders are sentenced to imprisonment as punishment, not for punishment, and the State's failure to protect the respondent while depriving him of his liberty was a serious matter. Nonetheless, all three judges concluded that maintenance of public confidence in the administration of criminal justice required intervention. The Court imposed a new aggregate sentence of 12 years imprisonment with a non-parole period of 8 years and 6 months, applying principles of denunciation, adequate punishment, recognition of harm to the victims, and general deterrence.

Orders Made

  • Crown appeal allowed
  • The sentence imposed in the District Court set aside
  • Respondent resentenced to an aggregate term of imprisonment of 12 years, with a non-parole period of 8 years and 6 months

Key Takeaways

  • The Court of Criminal Appeal confirmed that good character, while a relevant mitigating factor, necessarily carries reduced weight in cases involving a prolonged pattern of repeated sexual offending against multiple child victims.
  • Where offences against children are separate and distinct, sentencing principles favour at least partial cumulation of sentences; concurrent or minimally cumulative structures risk failing to capture the full criminality of offending against different victims.
  • Adverse custodial experiences, including physical and psychiatric harm suffered on remand, are capable of reducing the weight given to specific deterrence and of militating against appellate intervention, but these considerations do not automatically prevent re-sentencing where the original sentence is well below the appropriate range.
  • Dhanji J observed that characterising opportunistic-seeming offending as lacking in planning rings hollow where the offender engaged in the same conduct repeatedly over many years, and that the absence of planning is not always a significant factor in such cases.
  • Maintenance of public confidence in the administration of criminal justice remained a decisive consideration, even where a different arm of the State had failed to adequately protect the offender during his period of custody.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(k), 21A(2)(n), 21A(5A), 25AA, 54A
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 66C(1), 66D
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- EG v R [2015] NSWCCA 21
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Maxwell v R [2020] NSWCCA 94
- PC v R (2022) 108 NSWLR 181; [2022] NSWCCA 107
- R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1
- R v Hill [2020] NSWCCA 197
- R v Kennedy [2000] NSWCCA 527
- R v VR [2024] NSWCCA 91