Mills v R [2017] NSWCCA 87

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mills v R [2017] NSWCCA 87 Hearing dates: 3 April 2017 Decision date: 05 May 2017 Before: Leeming JA at [1]; R A Hulme J at [5]; Beech-Jones J at [81] Decision: 1. Leave to appeal allowed and the appeal against sentence upheld. 2. Quash the sentence imposed in the District Court on 11 December 2015 and lieu, sentence the applicant to imprisonment comprising a non-parole period of 10 years with a balance of term of 3 years 6 months. The sentence will date from 4 December 2014 and the applicant will become eligible for release on parole upon the expiration of the non-parole period on 3 December 2024. Catchwords: CRIMINAL LAW – sentence appeal – persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – whether the sentencing judge erred in assessing objective seriousness as high range – where only aggravating circumstances under s 61J(2) were (d) age and (e) under authority – where four particularised offences were representative in nature of multiple sexual assaults – identifying absent aggravating factors does not mitigate seriousness – finding of high range open to the sentencing judge CRIMINAL LAW – sentence appeal – persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – whether sentence manifestly excessive – where sentencing judge's starting point close to maximum penalty – present case not worst category – sentence unreasonable – appeal allowed and applicant re-sentenced Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) s 15A Crimes Act 1900 (NSW) ss 61J, 61JA, 66A(2), 66EA(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(3), 44 Cases Cited: Baines v R [2016] NSWCCA 132 Barbaro v R; Zirilli v R [2014] HCA 2; 253 CLR 58 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520 Hitchen v R [2010] NSWCCA 77 House v The King [1936] HCA 40; 55 CLR 499 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mammone v R [2013] NSWCCA 95 Mulato v R [2006] NSWCCA 282 R v JCW [2000] NSWCCA 209; 112 A Crim R 466 Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 The Queen v Kilic [2016] HCA 48 Category: Principal judgment Parties: Mills (a pseudonym) (Applicant) Regina (Crown) Representation: Counsel: Mr S Fraser (Applicant) Ms M Cinque SC (Crown)