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Court of Criminal Appeal 7 March 2025

Jones (a pseudonym) v R

[2025] NSWCCA 29

Sexual offences
CRIME APPEAL AGAINST SENTENCE CHILD SEX OFFENCES FINDING OF SPECIAL CIRCUMSTANCES ADJUSTMENT TO NON OTHER GROUNDS REMAINED

Citation: Jones (a pseudonym) v R [2025] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 7 March 2025
Judge(s): Basten AJA (with McNaughton J and Weinstein J agreeing)

Background

The applicant was convicted in the District Court in 2023 on eight charges of child sexual offences involving two girls aged between 11 and 12 years. One victim was the applicant's foster daughter, who had been in his and his wife's care since she was 18 months old. The offences included five counts of digital-vaginal penetration and one count of penile-vaginal penetration.

The trial judge imposed an aggregate sentence of 20 years' imprisonment with a non-parole period of 15 years, commencing 29 June 2023. The sentencing judge made a finding of "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), but declined to reduce the non-parole period below the statutory default ratio of 75%.

The applicant appealed on a single ground: that the sentencing judge erred by making a finding of special circumstances but then failing to give effect to that finding by adjusting the non-parole period.

  • Whether the sentencing judge erred in finding special circumstances but declining to reduce the non-parole period from the statutory default ratio
  • Whether the judge's sole stated reason for not adjusting the ratio (that a five-year parole period was adequate for rehabilitative purposes) adequately addressed all four bases for the special circumstances finding
  • Whether, if error was established, the Court of Criminal Appeal was required to conduct a full resentencing exercise

Decision

The Court accepted the applicant's submission that the sentencing judge fell into error. The judge identified four grounds for special circumstances: the applicant's age (62 at the time of sentencing), the fact that it was his first period of imprisonment, a mental health condition making custody significantly more onerous, and the need for a lengthy supervised release period to address a paedophilic disorder. When declining to adjust the non-parole period, the judge addressed only the fourth ground, finding that five years on parole would be "more than adequate" for rehabilitative purposes.

Basten AJA held that this reasoning, while unassailable on its own terms, left the remaining three grounds unaddressed. The judge also did not express the view that a non-parole period of less than 15 years would be inadequate to reflect the seriousness of the offending. In the absence of that finding, and given the considerable punitive weight already carried by a 15-year non-parole period, it was not appropriate to imply such a conclusion against the applicant's interests.

The Court confirmed that the purpose of a special circumstances finding is precisely to permit a variation from the statutory ratio. Where a sentencing judge makes such a finding but then does not act on it, and the reasoning addresses only one of several stated bases, that constitutes a material error of principle justifying appellate intervention. The degree of restraint ordinarily applied to discretionary sentencing decisions (as articulated in R v Simpson) does not apply with the same force where there is a clear error of principle.

On resentencing, the Court accepted the aggregate term of 20 years as unchallenged and confirmed the special circumstances finding on three grounds: the applicant's age, his first experience of custody, and the exacerbating effect of his post-traumatic stress disorder and depression in a custodial environment. A two-year reduction to the non-parole period was held to be appropriate, bringing it to 65% of the total sentence, without rendering the sentence inadequate to reflect the overall criminality of the offending.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentence quashed
  • Applicant resentenced to an aggregate term of 20 years' imprisonment, with a non-parole period of 13 years commencing 29 June 2023 and expiring 28 June 2036, and a balance of term of seven years terminating 28 June 2043

Key Takeaways

  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is only meaningful if it results in an actual adjustment to the non-parole period; making the finding without giving effect to it constitutes a material error of principle.
  • Where a sentencing judge identifies multiple grounds for special circumstances, declining to vary the statutory ratio solely by reference to one of those grounds does not adequately dispose of the others.
  • The ordinary appellate restraint in interfering with discretionary sentencing decisions is reduced where the error is one of principle rather than a mere factual or evaluative judgment.
  • Refusing to reduce a non-parole period on the basis that it would produce a sentence inadequate to reflect the criminality of the offending is a legitimate approach, but that conclusion must be clearly expressed; it will not be implied against the offender in the absence of an explicit finding to that effect.
  • On a resentencing exercise following the approach in Kentwell v The Queen, the Court of Criminal Appeal confirmed it may accept the sentencing judge's factual findings while re-exercising the sentencing discretion, particularly where the trial judge had the benefit of hearing witnesses and was intimately familiar with the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C, 66DB, 66DD
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (including ss 44(2) and 44(2B))

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534