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District Court 4 December 2024

R v RM (No.7)

[2024] NSWDC 577

Sexual offences
CRIMINAL LAW SENTENCING PAROLE PERIOD

Citation: R v RM (No.7) [2024] NSWDC 577
Court: District Court of New South Wales
Date: 4 December 2024
Judge: Abadee DCJ

Background

The offender had been sentenced in August 2023 to 12 years' imprisonment with a non-parole period of 8 years and 5 months, following conviction on 11 sexual offences committed against his daughter over a period spanning 2011 to 2020. Those sentencing remarks were published as R v RM (No.6) [2023] NSWDC 305.

The offender appealed all convictions (but not the severity of the sentence). The New South Wales Court of Criminal Appeal dismissed all appeal grounds except one. On count 5, the Court of Criminal Appeal found the guilty verdict was unreasonable and set it aside, substituting a conviction on a statutory alternative charge.

Count 5 had originally been charged under s 66C(2) of the Crimes Act 1900 (NSW), which concerned sexual intercourse with a person aged between 10 and 14 years in circumstances of aggravation, carrying a maximum of 20 years. The substituted conviction was under s 66C(4), which covers the same conduct where the victim is aged between 14 and 16 years, carrying a maximum of 12 years. The matter was remitted to the District Court for re-sentencing on the substituted count.

  • What sentence was appropriate for the statutory alternative offence under s 66C(4), given the lower maximum penalty and the absence of a standard non-parole period at the time of offending?
  • How should the totality principle be applied when one count in a multi-count sentence is replaced by a conviction for a less serious statutory alternative?
  • Whether new post-sentencing information about the offender's rehabilitation prospects warranted any adjustment to the sentence.
  • Whether the non-parole period ratio required further reduction in light of the Court of Criminal Appeal's subsequent decision in Crane v R [2024] NSWCCA 87, which clarified that a finding of special circumstances must be given practical effect.

Decision

Abadee DCJ confirmed that the only change to the factual findings from the original sentencing was the age of the victim for count 5, which was now taken as 14 years rather than 13 years. All other factual findings from the earlier remarks remained intact. The statutory aggravating factors that had applied to the original count 5 were readily transposed to the substituted count, and the conduct was still assessed as very serious, involving force and premeditation.

An indicative sentence of 3 years' imprisonment was set for the statutory alternative count. The indicative sentences for all remaining counts were left unaltered. Applying the totality principle afresh, the judge found it would be illogical for the aggregate sentence to remain unchanged when a less serious offence had been substituted, and a modest reduction to the overall term was warranted.

On rehabilitation, the judge noted that new information, presented through counsel's submissions and a supporting exhibit, showed the offender had maintained good behaviour in custody and obtained employment. While his continued absence of remorse and insight was noted, the judge found there was some cause for cautious optimism about his rehabilitation prospects, representing a marginally more favourable subjective case than at the time of the original sentence.

The judge also addressed the non-parole period ratio in light of Crane v R. The original ratio of 70.1% had been only a modest variation from the statutory norm, and the Court of Criminal Appeal in Crane had held that such a minor adjustment required specific justification. Abadee DCJ determined it was appropriate to reduce the ratio further for the aggregate sentence, reflecting both the special circumstances finding and the slightly improved rehabilitation picture.

Orders Made

  • The sentence imposed on 11 August 2023 was set aside.
  • In its place, the offender was sentenced to 11 years and 10 months' imprisonment, commencing 3 January 2023 and expiring 2 November 2034.
  • A non-parole period of 7 years and 10 months was set, expiring 2 November 2030, after which the offender is eligible for release on parole.

Key Takeaways

  • When the Court of Criminal Appeal sets aside a conviction and substitutes a statutory alternative carrying a lower maximum penalty, the sentencing court must re-apply the totality principle afresh; it would be illogical for the aggregate sentence to remain unchanged.
  • A conviction under s 66C(4) of the Crimes Act 1900 (NSW) is inherently less serious than one under s 66C(2), with the sole distinction being the age band of the victim (14 to 16, rather than 10 to 14 years).
  • Crane v R [2024] NSWCCA 87 established that a finding of special circumstances must produce a meaningful reduction in the non-parole period ratio; only a modest variation from the statutory norm will require specific justification, and may constitute error if insufficiently explained.
  • Post-sentencing conduct evidence, even when presented through submissions rather than direct evidence, can inform a court's assessment of rehabilitation prospects on re-sentencing.
  • Factual findings from the original sentencing were largely carried forward unchanged, illustrating that a remitter confined to a specific count does not ordinarily reopen the broader factual foundation of a multi-count sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C(2) and 66C(4)

Cases
- R v RM (No.6) [2023] NSWDC 305 (original sentencing remarks)
- RM v R [2024] NSWCCA 148 (Court of Criminal Appeal appeal against conviction)
- Crane v R [2024] NSWCCA 87 (special circumstances and non-parole period ratio)