R v PC [2022] NSWCCA 59

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v PC [2022] NSWCCA 59 Hearing dates: 4 March 2022 Date of orders: 25 March 2022 Decision date: 25 March 2022 Before: Davies J at [1] Bellew J at [2] Fagan J at [15] Decision: (1) Allow the appeal on grounds 1 and 2. (2) Quash the sentences imposed by his Honour Judge M Williams SC on 5 November 2021. (3) In lieu thereof the respondent is sentenced to an aggregate term of imprisonment of 2 years commencing on 25 March 2022 comprising a non-parole period of 1 year and 6 months commencing on 25 March 2022 and expiring on 24 September 2023 and a balance of term of 6 months commencing on 25 September 2023 and expiring on 24 March 2024. (4) The respondent will be entitled to be released to parole at the expiry of the non-parole period on 24 September 2023. Catchwords: CRIMINAL LAW – Sentence – Appeal – Crown appeal on the basis of specific error – Respondent found guilty by a jury of multiple counts of indecent assault committed on his stepdaughter who was aged between 13 and 15 years at the relevant time – Where sentencing judge found that the requirement of the respondent to register under the Child Protection (Offenders Registration) Act 2000 (2000) was a form of extra-curial punishment and thus a mitigating factor on sentence – Error made out CRIMINAL LAW – Sentence – Appeal – Crown appeal on the basis of manifest inadequacy of sentence – Respondent found guilty by a jury of multiple counts of indecent assault committed on his stepdaughter who was aged between 13 and 15 years at the relevant time – Where a Community Corrections Order was imposed by the sentencing judge in respect of each offence – Absence of remorse and no acceptance of responsibility on the part of the respondent – Little basis in those circumstances to find that the respondent had excellent prospects of rehabilitation – Error in finding that the respondent's motivation for the offending was not purely sexual – Error in finding that the offending was impulsive – Displacement between other findings and the sentence which was imposed – Respondent re-sentenced to a term of imprisonment CRIMINAL LAW – Practice and procedure – Sentence – Appeal – Crown appeal – Where submission made that the Crown had not assisted the sentencing judge other than by making a "bald assertion" that a sentence of imprisonment was appropriate – Where submission made that conduct of the Crown on sentence had contributed to the imposition of a manifestly inadequate sentence – Suggestion that the Crown had played a part in the imposition of a manifestly inadequate sentence rejected – Where submission made that the Crown should have specifically put to the sentencing judge what the appropriate indicative sentences were – Conclusion that such an approach would have been contrary to authority – No failure on the part of the Crown to properly assist the sentencing judge CRIMINAL LAW – Practice and procedure – Observations as to the obligations imposed by s 15A(1)(a) of the Children Criminal Proceedings Act 1987 (NSW) and the effect on general deterrence of restrictions on publication of an offender's name Legislation Cited: Child Protection (Offender's Registration) Act 2000 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Barbaro v The Queen ; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Carrington v R [2021] NSWCCA 257 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 DJV v R [2008] NSWCCA 272 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v Daetz [2003] NSWCCA 216 Category: Principal judgment Parties: Regina (applicant) PC (respondent) Representation: Counsel: G Newton (applicant) G James QC (respondent)