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Court of Criminal Appeal 7 June 2024

R v Carey

[2024] NSWCCA 90

Sexual offences
CRIMINAL LAW SENTENCING PROSECUTION APPEAL CHILD SEXUAL OFFENCES OBJECTIVE GRAVITY OF THE CRIME

Citation: R v Carey [2024] NSWCCA 90
Court: Court of Criminal Appeal
Date: 7 June 2024
Judges: Harrison CJ at CL; Hamill J; N Adams J

Background

The respondent was convicted by jury of four counts of sexual intercourse with a child aged between 10 and 16 under authority, and two counts of aggravated indecent assault, contrary to the Crimes Act 1900 (NSW). The offending occurred over approximately twelve months between June 1997 and June 1998. The victim was aged between 12 and 13 at the time.

The respondent had become a trusted family friend, running a local business frequented by the victim and her mother. He assumed a father-figure role in the child's life, given the absence of her biological father. The offending involved a significant abuse of that trust, with two incidents occurring in the victim's home while her mother was present.

In December 2023 the District Court sentenced the respondent to an aggregate term of 4 years and 4 months imprisonment, with a non-parole period of 2 years and 6 months, commencing March 2022. The Director of Public Prosecutions appealed on the ground that the aggregate sentence was manifestly inadequate.

  • Whether the aggregate sentence imposed by the District Court was manifestly inadequate, having regard to the objective gravity of the offending.
  • If the sentence was manifestly inadequate, whether the Court of Criminal Appeal should exercise its residual discretion to decline to intervene and re-sentence, notwithstanding that error had been established.

Decision

On manifest inadequacy, the Court unanimously found that the aggregate sentence and non-parole period were manifestly inadequate. Hamill J, with Harrison CJ at CL and N Adams J agreeing, held that the indicative sentences were very lenient, and the indicative sentence for the fifth count was manifestly inadequate in isolation. When that leniency was combined with only a modest degree of notional accumulation across what were, in most instances, separate and distinct offences, the result did not reflect the objective gravity of the criminality involved.

On the residual discretion, the Court divided. N Adams J (with Harrison CJ at CL agreeing) held that the Director had discharged the onus of establishing that the court should intervene and re-sentence. Key factors pointing against exercising the residual discretion included the age and vulnerability of the victim, the respondent's knowledge of that vulnerability, letters he sent to the child including declarations of love, his demonstrated lack of insight and remorse (including a description of the victim as "precocious and provocative"), and the lasting physical, psychological and emotional harm suffered by the victim. The majority also noted a need for guidance to sentencing judges to achieve greater consistency in sentencing for such offences.

Harrison CJ at CL added that recognising the inadequacy of the sentence while declining to intervene would deprive that recognition of any meaningful effect in terms of punishment, retribution and deterrence.

Hamill J dissented on the residual discretion question. His Honour considered that the imminence of the respondent's release date, the unexplained delay in bringing charges, the respondent's rehabilitation over the 25 years since the offending, and the difficulties he faced in custody together warranted declining to re-sentence. Hamill J reasoned that the purposes of a prosecution appeal could be adequately served by a clear statement of inadequacy and guidance on sentencing methodology, without imposing an increased sentence so close to the respondent's release date.

Orders Made

  • Prosecution appeal dismissed.

Key Takeaways

  • A majority of the Court of Criminal Appeal held that leniency in indicative sentences, combined with a modest degree of notional accumulation across separate and distinct offences, can produce an aggregate sentence that is manifestly inadequate even where each step in the sentencing exercise might appear facially reasonable.
  • The residual discretion to decline to re-sentence despite establishing manifest inadequacy is not automatically enlivened by the imminence of a respondent's release date. The majority treated that timing as one factor among many, capable of being outweighed by the seriousness of the offending and the need for meaningful deterrence and punishment.
  • Harrison CJ at CL stated that accepting a Crown appeal while exercising the residual discretion to withhold re-sentencing would strip the Court's finding of inadequacy of any practical effect with respect to punishment, retribution and deterrence.
  • The dissent by Hamill J illustrates that the residual discretion remains a live and genuinely contested question. His Honour's reasons provide a detailed account of the factors that may, in an appropriate case, justify declining to intervene even where the sentence below was found to be inadequate.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), the totality principle applies to aggregate sentencing. Sentencing courts must fix appropriate indicative sentences for each offence before considering questions of concurrence or accumulation, to avoid the risk of the aggregate failing to reflect the full criminality of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 66C(2)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 21B, 25AA, 44(2), 53A(2)(b), 54A, 54D
- Criminal Appeal Act 1912 (NSW), s 5D(1)

Cases:
- Baker v R [2022] NSWCCA 195; (2022) 302 A Crim R 60
- Carr v R [2020] NSWCCA 214
- CMB v Attorney General of New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Dawkins v R [2018] NSWCCA 278
- 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
- FB v R; R v FB [2011] NSWCCA 217
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- 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
- MC v R [2017] NSWCCA 316; (2017) 271 A Crim R 83
- O'Brien v R [2013] NSWCCA 197
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v AA [2006] NSWCCA 55
- R v Bugmy (No 2) [2014] NSWCCA 322; (2014) 247 A Crim R 556
- R v Hookey [2018] NSWCCA 147
- R v Hovell [2021] NSWDC 326