Carrington v R [2021] NSWCCA 257

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Carrington v R [2021] NSWCCA 257 Hearing dates: 18 October 2021 Date of orders: 5 November 2021 Decision date: 05 November 2021 Before: Beech-Jones CJ at CL at [1]; R A Hulme J at [2]; Dhanji J at [81] Decision: 1. Grant leave to appeal and allow the appeal. 2. Quash the sentence imposed in the District Court on 29 October 2020. 3. Sentence the offender to an aggregate term of imprisonment for 10 years with a non-parole period of 7 years, 6 months. The commencement date of the sentence is 29 January 2020. Note that the non-parole period will expire on 28 July 2027 whereupon the offender will become eligible for release on parole. 4. Revoke the suppression order and the non-publication order made in the District Court on 20 August 2020 and in lieu, note the application of s 15A of the Children (Criminal Proceedings) Act 1987 and s 578A of the Crimes Act 1900 prohibiting identification of the victim and the offender. Catchwords: CRIME – sentence appeal – alleged failure to have regard to favourable evidence about three statutory mitigating factors – concession by defence counsel at sentence that each mitigating factor was not established – alleged error contrary to case at first instance – ground dismissed CRIME – sentence appeal – manifest excess – aggregate sentence – guilty plea – incest – assault occasioning actual bodily harm – incite aggravated act of indecency – further offences taken into account on Forms 1 – father-daughter relationship between offender and victim – uncharged acts – victim at lowest of age range of offence – breach of trust – victim not a willing participant in incest – De Simoni principle – offences part of a course of conduct over a significant period – objective severity above mid-range – starting points of indicative sentences near the maximum penalty – differential unable to be explained by Form 1 offences – aggregate sentence manifestly excessive - ground upheld – applicant resentenced Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Court Suppression and Non-publication Orders Act 2006 (NSW) Crimes Act 1900 (NSW), ss 59(1), 61M(1), 61O, 78A(1), 578A Cases Cited: Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v West [2014] NSWCCA 250 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: Mr Carrington (Applicant) Regina (Respondent) Representation: Counsel: Ms S Goodwin (Applicant) Ms C Curtis (Crown)