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Court of Criminal Appeal 5 June 2024

PN v R

[2024] NSWCCA 86

Sexual offences
CRIME APPEAL AGAINST SENTENCE CHILD SEXUAL ASSAULT OFFENCES QUESTION OF MANIFEST EXCESS

Citation: PN v R [2024] NSWCCA 86
Court: NSW Court of Criminal Appeal
Date: 5 June 2024
Judges: Wilson J (primary reasons); Chen J and Huggett J (agreeing)

Background

The applicant, referred to by the pseudonym PN, pleaded guilty in the District Court to 14 State offences and one Commonwealth offence arising from the prolonged sexual abuse of his young niece, referred to as AN. The offending occurred when AN was between six and nine years old and included grooming, repeated sexual intercourse with a child under 10, intentional touching, and the production and possession of child abuse material. The applicant had a prior conviction for a child sex offence and was a registrable person under the relevant child protection legislation at the time of the conduct.

The sentencing judge imposed an aggregate State sentence of 37 years imprisonment with a non-parole period of 25 years, commencing 2 September 2022. A separate Commonwealth sentence of 3 years ran concurrently in part. The total effective sentence was 38 years imprisonment with a non-parole period of 26 years. The applicant received a 25% discount on each indicative sentence in recognition of his early guilty pleas.

The applicant sought leave to appeal the sentence, contending that errors in the indicative sentencing structure produced a manifestly excessive aggregate term.

  • Whether the indicative sentence for count 12 (anal penetration of a child under 10) was manifestly excessive, particularly given it was higher than the indicative sentences for counts involving vaginal penetration
  • Whether the sentencing judge failed to carry through his stated intention regarding the non-parole periods for counts 4 to 13
  • Whether the aggregate sentence was manifestly excessive overall

Decision

On ground 1, the Court rejected the argument that the higher indicative term for count 12 demonstrated error. Wilson J observed that comparing the ratio of indicative sentences does not, of itself, establish manifest excess. The sentencing judge had identified count 12 as the most serious of the penetration offences because it involved anal penetration, and the Court found that assessment was open. No error in the indicative sentence for that count was established.

On ground 2, the Court accepted that there was a discrepancy in how the sentencing judge expressed his intention regarding non-parole periods for counts 4 to 13, compared with what was ultimately recorded. However, the Court concluded that this internal inconsistency did not infect the aggregate sentence, which remained independently valid. The aggregate approach to sentencing under the relevant provisions allowed the Court to assess the final sentence on its own terms.

On ground 3, the Court declined to find manifest excess in the aggregate sentence. Wilson J acknowledged the sentence was stern and might fairly be characterised as severe, but found it was not unjust or unfair having regard to the gravity of the offending. Relevant factors included the very young age of the victim, the applicant's position of trust as her uncle, the abuse occurring in AN's home, the volume and nature of the child abuse material produced, the applicant's prior relevant conviction, his absence of remorse, his minimisation of and blame-shifting regarding the conduct, and a psychological assessment that found no real insight and poor rehabilitation prospects.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A disparity between indicative sentences for different counts within the same statutory offence does not automatically establish error; the comparison of ratios between indicative terms is not a reliable standalone indicator of manifest excess.
  • In dismissing the aggregate sentence challenge, the Court of Criminal Appeal confirmed that an aggregate sentence may be upheld even where internal inconsistencies in non-parole period calculations are identified at the indicative level, provided the aggregate term itself is not infected by the error.
  • Where a sentencing judge's internal documentation of indicative non-parole periods is inconsistent with stated intentions, this will not necessarily vitiate a properly constructed aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Severe aggregate sentences for child sexual offending can be appropriate where the offending is prolonged, involves a very young victim in a position of vulnerability, and the offender demonstrates no remorse, no insight, and poor rehabilitation prospects.
  • A prior conviction for a child sex offence, combined with a registered status under the Child Protection (Offenders Registration) Act 2000 (NSW) at the time of further such offending, was treated as a significant aggravating factor in this sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 66DA, 66EB, 91G
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 9, 33, 53A
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Criminal Code Act 1995 (Cth), s 474.22A
- Crimes Act 1914 (Cth), ss 16B, 16BA

Key Cases:
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v M.A.K., R v M.S.K. (2006) 167 A Crim R 159; [2006] NSWCCA 381
- Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153
- PC v R [2022] NSWCCA 107
- AJ v R [2023] NSWCCA 158
- R v BH [2023] NSWCCA 278
- Clarke v R [2023] NSWCCA 170
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v CMB [2014] NSWCCA 5
- Cullen v R [2014] NSWCCA 162
- JM v R [2014] NSWCCA 297