AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 13 March 2024

STB v R

[2024] NSWCCA 36

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE ERROR CONCEDED QUESTIONABLE INSIGHT NO LESSER SENTENCE IS WARRANTED IN LAW

Citation: STB v R [2024] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 13 March 2024
Judges: Price J, Lonergan J (principal judgment), Dhanji J

Background

The applicant pleaded guilty in the District Court to three counts of sexual intercourse with a child, his stepsister, committed over approximately three years between January 2018 and May 2020. The victim was between nine and twelve years old during the offending period; the applicant was between twenty and twenty-two. Four further incidents of sexual offending against the same victim were taken into account on Form 1 certificates (a procedural mechanism by which additional offences are acknowledged at sentencing without separate conviction or punishment).

The District Court sentenced the applicant to eight years and two months imprisonment with a non-parole period of four years and nine months. The sentence commenced on 2 June 2020, meaning the non-parole period was due to expire on 1 March 2025. The applicant did not plead guilty until 14 December 2021, the date listed for pre-recording of the victim's evidence, and received only a five per cent guilty plea discount as a result.

On appeal, the applicant raised four grounds: that the sentencing judge failed to make findings on rehabilitation and risk of reoffending; that she failed to make findings on remorse; that she failed to address the applicant's lack of prior convictions; and that a Form 1 offence linked to Count 2 referenced a repealed statutory provision.

  • Whether the sentencing judge erred by omitting findings on the applicant's prospects of rehabilitation and likelihood of reoffending.
  • Whether the sentencing judge erred by omitting findings on remorse.
  • Whether the sentencing judge erred by failing to address the applicant's lack of prior convictions as a mitigating factor.
  • Whether the sentencing proceedings miscarried because the Form 1 offence taken into account for Count 2 referenced section 61M(2) of the Crimes Act 1900, which had been repealed before the conduct in question occurred.

Decision

The Crown conceded Ground 4 at the outset: the Form 1 offence associated with Count 2 cited section 61M(2) of the Crimes Act, which was repealed effective 1 December 2018, yet the conduct it described occurred between February and March 2019, after that repeal. The Court accepted the concession and treated the error as one requiring the sentencing discretion to be exercised afresh, consistent with the principle in House v The King and Kentwell v The Queen.

Dhanji J added a note of caution on Ground 4. His Honour observed that it was not self-evident the error actually affected the sentencing discretion, since a Form 1 offence is not punished but rather taken into account to inform the weight given to retribution and personal deterrence, and the relevant facts underlying the conduct were set out regardless of the incorrect statutory reference. His Honour agreed to act on the concession, but noted that doing so created no precedent on the substantive question.

On the remaining three grounds, the Court undertook a fresh sentencing exercise on the basis of the evidence before the District Court and additional material tendered on resentence. The sentencing judge had not made express findings on remorse, rehabilitation, or reoffending risk. Critically, the applicant had denied committing the offences in a psychologist's assessment conducted approximately six weeks before the sentencing hearing, despite having pleaded guilty three months earlier. The Court found this denial demonstrated questionable insight and undermined any claim to genuine remorse. The absence of prior convictions was noted but did not alter the calculus given the seriousness of the offending.

Having exercised the sentencing discretion afresh and removing the impugned Form 1 offence from consideration for Count 2, the Court concluded that no lesser sentence was warranted in law. The appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that even where a conceded sentencing error triggers a fresh exercise of the sentencing discretion, that exercise may yield the same sentence if the overall circumstances do not warrant a reduction.
  • Dhanji J's observations highlight that the mechanical citation of a repealed provision on a Form 1 certificate may not, in itself, necessarily affect the validity of the sentencing exercise, because Form 1 offences inform the weight given to retribution and deterrence through the underlying admitted conduct rather than through formal conviction. The Court did not resolve this question definitively, acting instead on the Crown's concession.
  • An offender's denial of guilt to a psychologist shortly before sentencing, after having already pleaded guilty, was treated as evidence of questionable insight and as undermining any claim to remorse, even though the Court noted that inconsistent statements do not automatically foreclose findings of remorse in every case.
  • Dhanji J cautioned that accepting a Crown concession of error does not establish precedent on the correctness of the underlying legal proposition conceded.
  • The absence of prior convictions is a mitigating factor under the sentencing framework, but its weight can be significantly diminished by the gravity of the offending and the offender's demonstrated lack of insight.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1), 66C(1), 66DB
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D

Cases
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- The Queen v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338
- CSR Ltd v Eddy (2005) 226 CLR 1
- Markisic v Commonwealth of Australia (2007) 69 NSWLR 737
- AK v R [2016] NSWCCA 238
- Baker v R [2022] NSWCCA 195
- Giles-Adams v R; Preca v R [2023] NSWCCA 122
- Li v R [2023] NSWCCA 112
- Masters v R [2019] NSWCCA 233
- Porter v R [2019] NSWCCA 117
- R v AJP (2004) 150 A Crim R 575
- R v M.A.K; R v M.S.K (2006) 167 A Crim R 159
- Regina v O [2005] NSWCCA 327
- Zuffo v R [2017] NSWCCA 187