AB v The The Queen

[2022] NSWCCA 62

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AB v R [2022] NSWCCA 62

Hearing dates:

21 March 2022

Date of orders:

25 March 2022

Decision date:

25 March 2022

Before:

Beech-Jones CJ at CL at [1]
Price J at [14]
N Adams J at [15}

Decision:

(1)   The Applicant be granted leave to appeal.

(2)   The Appeal be dismissed.

Catchwords:

CRIME – appeal – sexual offences against a child – no question of principle

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

R v AB [2020] NSWDC 521

R v JJ [2019] NSWCCA 148

R v ND [2016] NSWCCA 103

Scott v R [2020] NSWCCA 81

Category:

Principal judgment

Parties:

AB (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr TV Hickie (Applicant)
Ms E Wilkins SC (Crown)

Solicitors:
Andrew Scali (Solicitors)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2019/190213

Publication restriction:

Non Publication Order with respect to the name of the complainant or any information that may identify her

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v AB [2020] NSWDC 521

Date of Decision:

11 September 2020

Before:

Weinstein SC DCJ

File Number(s):

2019/190213

Judgment

1. BEECH-JONES CJ at CL: This is an application for leave to appeal from an aggregate sentence imposed for the commission of three serious sex offences against a young child.

2. On 11 September 2020, the applicant was sentenced by his Honour Judge Weinsten SC in respect of three offences namely an offence of having sexual intercourse with child under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900, grooming a child under 14 years for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act and intentionally carrying out a sexual act with child under 10 years of age contrary to s 66DC(a) of the Crimes Act.

3. The maximum penalty for an offence under s 66A(1) is life imprisonment and the standard non-parole period is 15 years. The maximum penalty for an offence under s 66EB(3) is 12 years imprisonment and the standard non-parole period is 5 years. The maximum penalty for an offence under s 66DC(a) is 7 years. There is no standard non-parole period for that offence.

4. Included in a notice filed by the prosecutor under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Act”) and associated with the offence under s 66A(1) were two further offences, namely an offence of incite a victim under the age of 10 years to commit an indecent act contrary to former s 61O(2) of the Crimes Act and indecently assaulting a person under the age of 16 years contrary to former s 61M(2).

5. His Honour imposed an aggregate sentence of 8 years and 6 months with a non-parole period of 5 years and 8 months. Pursuant to s 53A(2) of the Sentencing Act His Honour specified an indicative sentence of imprisonment for 5 years and 7 months with a non-parole period of 3 years and 9 months for the offence under s 66A, three years with a non-parole period of two years for the offence under s 66EB(3) and two years and 3 months for the offence under s 66DC(a).

6. The offences were committed between 2016 and 2019. The victim of the offence was the daughter of the women the applicant was living with. The offending took place when the victim was aged between 5 and 8 years old. The facts and circumstances of the offending and the primary judge’s findings on all matters relevant to sentencing were comprehensively set out in his Honour’s sentencing judgment which should be read with this judgment (R v AB [2020] NSWDC 521).

7. None of his Honour’s findings are the subject of challenge. Instead, the sole ground of appeal is that the aggregate sentence imposed is “unreasonable or plainly unjust”. The relevant principle governing a complaint that a sentence is manifestly excessive was stated in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ):

“As was said in Dinsdale v The Queen [(2000) 202 CLR 321; [2000] HCA 54 at [6]], ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out … in Wong v The Queen [(2001) 207 CLR 584; [2001] HCA 64; at [58]; “Wong”], appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say … in Wong [at [58]], ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.”

8. The detailed submissions in support of this ground reduced to the proposition that, although the indicative sentences could not be said to be excessive, the aggregate sentence was too high having regard to his Honour’s finding that the objective seriousness of each offence was just below the range of objective seriousness (at [18], [22] and 26]) and what could be gained from considering sentencing statistics and the supposedly comparable cases of R v ND [2016] NSWCCA 103 (“ND”), R v JJ [2019] NSWCCA 148 (“JJ”) and Scott v R [2020] NSWCCA 81 (“Scott”).

9. Neither the statistics nor the cases provided any support for the ground of appeal. ND and JJ were both Crown appeals. ND involved a single offence under s 66A when the maximum penalty for the offence was 25 years and not life imprisonment as it is now. This Court imposed a sentence of six years imprisonment with a non-parole period of 4 years. JJ involved two offences under s 66A committed after the maximum penalty was increased to life. This Court sentenced the offender to an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years without any allowance for a discount for the plea of guilty. The applicant’s offending is worse than the offender in JJ. The applicant has been convicted of 3 offences with another two offences included on a Form 1.

10. In Scott this Court allowed an appeal against sentence and re‑sentenced the offender to an aggregate sentence of 5 years imprisonment with a non-parole period of two years and six months. The offender committed one offence under s 66A(1) and three offences under former s 61M(2) of assault with an act of indecency on a child under 16 years. The latter offence carried a maximum penalty of 10 years and a standard non-parole period of 8 years. However, the Court in Scott found that it was an “exceptional case” with the offences said to be “almost fleeting” (at [174]) and an “extraordinary and inexplicable aberration, late in the life of a man of unblemished good character” (at [176]). That is not the case with the applicant in this matter.

11. Having regard to the trial judge’s findings especially concerning the objective seriousness of the three offences, nether the indicative sentences or the aggregate sentence were manifestly excessive. I would reject the sole ground of appeal. In light of that conclusion, it is not necessary to consider a dispute that arose at the appeal as to whether certain evidence could be read on the “usual basis” (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]).

12. Lastly, I note that under s 15A of the Children (Criminal Proceedings) Act 1987 and s 578A of the Crimes Act 1900 any publication of the name of the victim or any matter which would identify her is prohibited. It was common ground that this extended to the applicant’s name as that would be likely to identify the victim. Hence, he is referred to as “AB”.

13. I propose the following orders:

1. The Applicant be granted leave to appeal;

2. The Appeal be dismissed.

   14. PRICE J: I agree with Beech-Jones CJ at CL.

   15. N ADAMS J: I agree with Beech-Jones CJ at CL.

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