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Court of Criminal Appeal 14 March 2025

RG v R

[2025] NSWCCA 36

Sexual offencesAssault & violence
CRIME APPEALS APPLICATION FOR LEAVE TO APPEAL MULTIPLE CHILD SEXUAL OFFENCES MANIFEST EXCESS APPEAL ALLOWED

Citation: RG v R [2025] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 14 March 2025
Judges: Davies J, Lonergan J, Yehia J (Yehia J delivering the principal judgment)

Background

The applicant pleaded guilty in the Local Court to 14 sexual offences against two of his biological daughters and one offence of intentionally choking one of them. The daughters were aged 8 or 9 and 10 or 11 at the time of the offending. Some offences were committed either in company with, or in the presence of, the victims' biological mother. The offending was described by the applicant's own counsel at first instance as "heinous, depraved and appalling," a characterisation accepted by the sentencing judge and not disputed on appeal.

The applicant was sentenced by Wass SC DCJ in the District Court at Taree on 17 October 2023 to an aggregate term of 48 years' imprisonment, with a non-parole period of 28 years. Under that sentence, the applicant would not be eligible for parole until 31 May 2050.

The applicant sought leave to appeal against the sentence under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), raising three grounds: that the sentencing judge failed to give proper weight to his own history of child sexual abuse, that the sentencing judge erred in finding his mental health issues increased the need for specific deterrence and community protection, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to treat the applicant's personal history of child sexual abuse as a discrete mitigating factor in reducing his moral culpability.
  • Whether the sentencing judge erred in concluding that the applicant's mental health condition increased the weight to be given to specific deterrence and protection of the community.
  • Whether the aggregate sentence of 48 years, including the 28-year non-parole period, was manifestly excessive when considered against the indicative sentences, the applicant's subjective case, and totality principles.

Decision

Ground 1: History of childhood sexual abuse

The Court found the sentencing judge had regard to the applicant's dysfunctional childhood, including the sexual abuse he himself suffered, as part of her overall assessment of his subjective circumstances. There was no requirement, in the circumstances of this case, to address that abuse as a separate mitigating consideration. Yehia J confirmed that the relevant test is whether the offender has established on the balance of probabilities that the history of abuse was a contributing factor in his own offending conduct. The sentencing judge was entitled to assess moral culpability in the context of the extreme seriousness, persistence, and prolonged nature of the offending. Ground 1 was not made out.

Ground 2: Mental health and specific deterrence

The Court accepted the established principle that a mental illness or condition may, in some circumstances, make an offender a greater danger to the community, thereby increasing the weight given to specific deterrence and community protection. The evidence before the sentencing judge provided a sufficient foundation for those findings. It was open to her Honour to conclude that the applicant's mental health condition increased the weight to be given to those sentencing considerations. Ground 2 was not made out.

Ground 3: Manifest excess

While the Court had no doubt that the offending warranted a very lengthy term of imprisonment and required strong denunciation, it found the aggregate sentence and non-parole period imposed went beyond what could be categorised as a stern or harsh sentence. The Court found the 48-year head sentence with a 28-year non-parole period was clearly manifestly excessive. The appeal was allowed on this ground, and the Court resentenced the applicant to an aggregate term of 30 years with a non-parole period of 20 years. The Court considered this proportionate to the overall criminality and the applicant's subjective case, while allowing a sufficient period on parole for treatment and community reintegration.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed at Taree District Court on 17 October 2023 quashed.
  • In lieu, the applicant sentenced to an aggregate term of 30 years' imprisonment, commencing 1 June 2022 and expiring 31 May 2052, with a non-parole period of 20 years. Earliest eligibility for parole: 31 May 2042.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where an offender relies on a personal history of child sexual abuse as a mitigating factor, the offender must establish on the balance of probabilities that the history of abuse was a contributing factor in their own offending conduct.
  • A sentencing judge is not required to address an offender's history of childhood abuse as a discrete separate consideration, provided the overall subjective circumstances are genuinely taken into account in the moral culpability assessment.
  • Under established principle, mental health conditions can, in appropriate cases, increase rather than decrease the weight given to specific deterrence and community protection at sentencing, where the evidence supports that conclusion.
  • Aggregate sentences must reflect totality principles: even where offending is properly described as heinous and prolonged, a sentence that goes beyond "stern" or "harsh" into manifest excess will be set aside on appeal.
  • In resentencing, the Court reduced the aggregate term from 48 years to 30 years (non-parole period from 28 to 20 years), emphasising that the revised sentence remained proportionate to serious, persistent child sexual offending while also providing a meaningful parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37(1A), 66A(1), 66C(2), 66DA(a), 66DB(a), 66DE(a)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Astill v R [2024] NSWCCA 118
- BR v R [2021] NSWCCA 279
- Da Silva v R [2024] NSWCCA 216
- Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153
- DC v R [2023] NSWCCA 82
- DH v R [2022] NSWCCA 200
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- FL v R [2020] NSWCCA 114
- Gibbons v R [2019] NSWCCA 150
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- KAB v R [2015] NSWCCA 55
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Luque v R [2017] NSWCCA 226
- Martinez v R [2020] NSWCCA 250
- Merheb v R [2021] NSWCCA 224
- MLP v R [2014] NSWCCA 183
- Moodie v R (2020) 284 A Crim R 87; [2020] NSWCCA 160
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v AGR (Court of Criminal Appeal (NSW), 24 July 1998, unrep)