R v XX [2017] NSWCCA 90

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v XX [2017] NSWCCA 90 Hearing dates: 5 April 2017 Date of orders: 10 May 2017 Decision date: 10 May 2017 Before: Bathurst CJ at [1]; R A Hulme J at [2]; Beech-Jones J at [3] Decision: (1) Appeal allowed;

(2) Set aside the aggregate sentence imposed by the District Court on 28 October 2016 and amended on 29 November 2016;

(3) In lieu thereof:

(a) impose an aggregate sentence of 9 years imprisonment to commence on 24 July 2015 and expire on 23 July 2024;

(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) 1999 Act set a non-parole period of 6 years imprisonment;

(c) the applicant will become eligible to be released on parole upon the expiry of the non‑parole period on 23 July 2021. Catchwords: SENTENCING – CROWN APPEAL – Respondent sexually abused his 4-year-old daughter – three offences – District Court imposed aggregate sentence of 7 years imprisonment with a non‑parole period of 4 years and 6 months – Respondent provided information to prosecuting authorities in relation to a conspiracy to murder six years prior to abusing his daughter – received financial reward – sentencing judge afforded discount of 15% under s 23 of the Crimes (Sentencing Procedure) Act 1999 –interpretation, scope and purpose of s 23 – assistance to authorities provided by Respondent fell within s 23(1) of Sentencing Act – found sentencing judge erred in failing to consider whether the absence of any relationship between the offending the subject of the assistance and the offences committed by the Respondent warranted the grant of any discount on account of assistance – found that discount for assistance was unreasonable – whether sentencing judge erred in assessing objective seriousness of one of the sexual assault offences – whether sentencing judge erred in not finding that one of the sexual assault offences was aggravated by a breach of trust – error established in failure to find offence was aggravated by a breach of trust but not in relation to characterisation of sexual assault offence – whether aggregate sentence was manifestly inadequate – sentence manifestly inadequate because of discount for assistance and relationship between indicative sentences and aggregate sentence – residual discretion not to intervene not exercised – Respondent resentenced – aggregate sentence of 9 years imprisonment with non-parole period of 6 years imposed. Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes (Amendment) Bill 1991 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment Act 2010 Crimes Act 1900 Crimes Legislation Amendment (Child Sex Offences) Act 2015 Criminal Appeal Act 1912 Criminal Legislation (Amendment Act) 1992 Criminal Procedure Act 1986 Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001 Interpretation Act 1987 Sentencing Act (Interpretation Act Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 CMB v Attorney General for the State of New South Wales [2015] HCA 9; 256 CLR 346 FAI Insurances Ltd v Winneke [1982] HCA 26; 151 CLR 342 Hili v The Queen [2010] HCA 45; 242 CLR 520 House v The King [1936] HCA 40; 55 CLR 499 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 MRW v R [2011] NSWCCA 260 Mulato v R [2006] NSWCCA 282 PD v R [2012] NSWCCA 242 R v Cartwright (1989) 17 NSWLR 243 R v DH; R v AH [2014] NSWCCA 326 R v Fabrizio Calderoni [2000] NSWCCA 511 R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; 180 CLR 322 R v Janceski [2005] NSWCCA 288 R v Kelly (1993) 30 NSWLR 64 R v Many (1990) 51 A Crim R 54 RJT v R [2012] NSWCCA 280; 218 A Crim R 490 The Queen v Robert John and Trevor Graham Golding (1980) 24 SASR 161 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; 86 NSWLR 527 Williamson v R [2015] NSWCCA 250 Wong v R [2001] HCA 64; (2001) 207 CLR 584 Texts Cited: New South Wales Legislative Assembly, Second Reading, Crimes (Amendment) Bill (Hansard), 18 April 1991 New South Wales Legislative Assembly, Second Reading, Crimes (Sentencing Procedure Bill) (Hansard), 28 October 1999 New South Wales Sentencing Council, Reduction in Penalties at Sentence, August 2009 New South Wales Legislative Assembly, Explanatory Note to Crimes (Sentencing Procedure) Amendment Bill 2010 Category: Principal judgment Parties: Regina (Appellant) XX (Respondent) Representation: Counsel: N Williams (Crown) L Fernandez (Respondent)