R v Gavel [2014] NSWCCA 56

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Gavel [2014] NSWCCA 56 Hearing dates: 2 December 2013 Decision date: 15 April 2014 Before: Leeming JA at [1]; Johnson J at [1]; Hall J at [1] Decision: 1. Crown appeal allowed. 2. Aggregate sentence imposed at the Parramatta District Court on 4 April 2013 is quashed. 3. In its place, the Respondent is sentenced to an aggregate term of imprisonment comprising a non-parole period of nine years and six months commencing on 14 March 2013 and expiring on 13 September 2022, with a balance of term of four years and six months commencing on 14 September 2022 and expiring on 13 March 2027. Catchwords: CRIMINAL LAW - sentence - Crown appeal - aggravated sexual intercourse under s.66A(2) Crimes Act 1900 (three counts) - aggravated indecent assault under s.61M(2) Crimes Act 1900 - possess child abuse material under s.91H(2) Crimes Act 1900 - offender 33-year old friend of family of eight-year old victim - offender showed pornographic videos on laptop to victim before commission of offences - digital intercourse and cunnilingus - offences committed over four-month period while offender minding victim and residing in victim's home - substantial quantity of child pornography on offender's laptop and hard drives - no prior criminal history - pleas of guilty - aggregate sentence imposed - head sentence of eight years with non-parole period of five years and four months - Crown asserts sentence manifestly inadequate - significance of increased maximum penalty for s.66A(2) offences - planning and organisation by offender - offender groomed victim in preparation for sexual activity by displaying pornographic videos - exploitation of vulnerable victim by person in authority - importance of harm to child victim - sentence manifestly inadequate - offender resentenced - aggregate sentence comprising head sentence of 14 years with non-parole period of nine years and six months Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Crimes Amendment (Sexual Offences) Act 2008 Criminal Appeal Act 1912 Criminal Procedure Act 1989 Cases Cited: Abbas v R [2013] NSWCCA 115 Clarkson v R [2011] VSCA 157; 32 VR 361 Dinsdale v The Queen [2000] HCA 54; 202 CLR 231 Doe v R [2013] NSWCCA 248 Essex v R [2013] NSWCCA 11 GN v R [2012] NSWCCA 96 Green v The Queen [2011] HCA 49; 244 CLR 462 Hili v The Queen [2010] HCA 45; 242 CLR 520 House v The King [1936] HCA 40; 55 CLR 499 Ibbs v The Queen [1987] HCA 46; 163 CLR 447 Jolly v R [2013] NSWCCA 76 Jones v R [2012] NSWCCA 262 JRM v R [2012] NSWCCA 112 Kertai v R [2013] NSWCCA 252 Leslie v R [2013] NSWCCA 48; 227 A Crim R 133