AB, R. v

Factual and Procedural Background

The appellant pleaded guilty on 13 November 2023 to multiple sexual offences involving his stepdaughter, including three counts of rape, one count of attempted rape, two counts of sexual assault, and three counts of causing a person to engage in sexual activity without consent. The abuse began when the complainant was 13 years old and continued over a two-year period, often occurring in the family home. The appellant was sentenced on 4 January 2024 to an extended sentence totaling 17 years, with a custodial term of nine years and an extension period of eight years for one rape offence, plus a consecutive six-year term for another offence. Several other determinate sentences were imposed concurrently. The appellant appealed against the sentence, contending that the total sentence was manifestly excessive and the extension period too long. During the appeal, an additional ground was allowed regarding the use of the incorrect sentencing guideline table for certain offences. The court subsequently varied the sentences accordingly.

Legal Issues Presented

1. Whether the total sentence imposed on the appellant was manifestly excessive.
2. Whether the length of the extension period in the extended sentence was excessive.
3. Whether the sentencing judge erred in applying the incorrect guideline table for offences of causing a person to engage in sexual activity without consent where no penetration occurred.

Arguments of the Parties

Appellant's Arguments

• The total custodial sentence and the extension period were manifestly excessive.
• At the appeal hearing, counsel for the appellant contended that the sentencing judge used the wrong guideline table for offences involving causing a person to engage in sexual activity without penetration, leading to an inappropriately high starting point for sentence on count 11.

Respondent's Arguments

• This information was not available in the provided opinion.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analysed the sentencing exercise by first confirming the appropriateness of the sentencing categories and culpability assigned by the sentencing judge. It noted the judge's proper approach in selecting a lead offence for concurrent sentencing and the rationale for imposing a consecutive sentence on count 11, which involved a particularly sinister incident following the complainant's disclosure to family members. The court agreed that the judge had erred by applying the sentencing guideline table for penetrative offences to count 11 and related counts 5 and 6, where no penetration occurred, resulting in an incorrect starting point for sentence. The court recalibrated the starting points and uplifted sentences accordingly to reflect the seriousness and repeated nature of the offending while maintaining credit for guilty pleas. The court concluded that simply correcting the error would result in an inadequate overall sentence and thus increased the custodial term on the lead count to better reflect totality and overall criminality. The extension period was upheld as justified given the appellant's assessed high risk of reoffending and the serious nature of the offences.

Holding and Implications

The appeal was allowed in part with the following variations:

• The sentence on the lead rape count (count 8) was varied to an extended sentence of eighteen and a half years, comprising a custodial sentence of ten and a half years and an extension period of eight years.
• The sentences on counts 5 and 6 were reduced to three years' imprisonment each, to be served concurrently with the sentence on count 8.
• The sentence on count 11 was reduced to three years' imprisonment, to be served consecutively to the sentence on count 8.
• All other sentences remain unaltered.

The court upheld the extension period as appropriate and not manifestly excessive.

The decision adjusts the sentencing to correct the application of sentencing guidelines without setting new precedent beyond clarifying the correct application of guidelines for non-penetrative sexual activity offences. The ruling ensures the sentence better reflects the overall gravity and totality of the appellant's criminal conduct.