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Court of Criminal Appeal 7 June 2024

R v VR

[2024] NSWCCA 91

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL APPEALS OFFENCES SPANNING 17 YEARS GRAVE EXAMPLES COERCIVE CONTROL SEXUAL ASSAULT AS PUNISHMENT DEGRADING AND HUMILIATING CONDUCT

Citation: R v VR [2024] NSWCCA 91
Court: NSW Court of Criminal Appeal
Date: 7 June 2024
Judges: Mitchelmore JA, Wright J, Hamill J

Background

A jury convicted the respondent (identified by a pseudonym to protect his victims' identities) of 12 counts of sexual intercourse without consent and one count of inciting an act of indecency. The offences were committed against three separate women, two of whom were his wives at the relevant times and one of whom was in a serious relationship with him. The offending spanned 17 years, from 2003 to 2020.

The conduct was characterised by the sentencing judge as "twisted" and "cruel." It included penile-vaginal, penile-anal, and oral intercourse without consent, and was marked by degradation, humiliation, irrational jealousy, and coercive control. The respondent was also found guilty of two counts of common assault and one count of intimidation arising from related conduct.

In the District Court, Judge Craigie sentenced the respondent to an aggregate term of 11 years and 3 months imprisonment with a non-parole period of 7 years and 6 months. The Director of Public Prosecutions appealed on the basis that the sentence was manifestly inadequate.

  • Whether the aggregate sentence of 11 years and 3 months was manifestly inadequate having regard to the objective gravity of the offending
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline to intervene, notwithstanding any finding of manifest inadequacy
  • Whether the indicative individual sentences nominated by the sentencing judge were themselves inadequate
  • Whether the extent of notional accumulation within the aggregate sentence, combined with the reduction for special circumstances, produced an unjust overall result

Decision

The Court of Criminal Appeal found the indicative sentences for the individual offences to be very lenient, and in some cases unreasonable and manifestly inadequate in their own right. When those lenient individual sentences were combined with an insufficient degree of notional accumulation within the aggregate, and a substantial downward adjustment to the minimum term on the basis of special circumstances, the resulting aggregate sentence and non-parole period were held to be unreasonable, plainly unjust, and manifestly inadequate. The Court applied Dinsdale v The Queen, Munda v Western Australia, and JM v R in reaching this conclusion.

On the question of residual discretion, the Court held that this was not a case in which the discretion to refrain from intervening should be exercised. The sentence fell so far short of what the objective gravity of the offending demanded that it was incapable of vindicating the dignity of the three complainants. The Court found the prosecution had discharged its onus to displace any basis for exercising that discretion, and the Court was compelled to intervene. The Court applied CMB v Attorney General of New South Wales, Green v The Queen; Quinn v The Queen, and R v AD on this point.

The respondent was re-sentenced to an aggregate term of 14 years and 6 months imprisonment with a non-parole period of 10 years. The sentence commences on 17 March 2023 and reflects the Court's assessment that the original sentence failed to account adequately for the extreme nature of the offending, the absence of remorse or insight, and the distinct harm suffered by each of the three victims.

Orders Made

  • Appeal allowed
  • The sentence imposed in the District Court is quashed
  • The respondent is sentenced to an aggregate sentence of 14 years and 6 months, commencing 17 March 2023 and expiring 16 September 2037
  • Non-parole period of 10 years, commencing 17 March 2023 and expiring 16 March 2033
  • The respondent is eligible for release to parole at the expiration of the non-parole period

Key Takeaways

  • The Court of Criminal Appeal confirmed that manifest inadequacy can arise from the combined effect of lenient individual indicative sentences, insufficient notional accumulation within an aggregate, and an overly generous special circumstances reduction, even where no single element is necessarily fatal in isolation.
  • A sentence must be capable of vindicating the dignity of each separate complainant. Where multiple victims have been subjected to distinct and serious harm over a lengthy period, the aggregate sentence must reflect that plurality of harm.
  • Residual discretion to decline to interfere on a prosecution appeal is not available where the sentence falls so far below the range demanded by the objective gravity of the offending that no proper sentencing purpose is served.
  • The absence of remorse, the absence of any criminal record, and evidence of good character are mitigating factors the sentencing court is entitled to weigh, but they cannot reduce a sentence to a level that is plainly disproportionate to the gravity of the conduct.
  • Coercive control within intimate partner relationships and the use of sexual violence as punishment were treated by the Court as features significantly aggravating the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61I, 61N(2), 578A
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, 53A, 53A(2)(b)
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Criminal Procedure Act 1986 (NSW), ss 166-167

Cases:
- CMB v Attorney General of New South Wales (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
- 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
- JM v R [2014] NSWCCA 297; 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
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v AD [2020] NSWCCA 275
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55