Citation: Regina v Donald Many [1999] NSWCCA 241
Court: New South Wales Court of Criminal Appeal
Date: 28 June 1999
Judge(s): Sully J; Bell J
Background
The appellant had pleaded guilty in the District Court at Broken Hill to 28 counts of serious sexual offending against five young boys, with the offences occurring between 1 January 1996 and 1 April 1997. The offences ranged from aggravated sexual assault through to acts of indecency and related charges. The sentencing judge imposed a combination of minimum terms, additional terms, and fixed terms of imprisonment across all counts.
The appellant, who appeared in person, sought leave to appeal against the sentences imposed. He argued that the sentencing judge had failed to give sufficient weight to his pleas of guilty and his prospects of rehabilitation, and he raised matters that had arisen since his sentencing, including his participation in programs while in custody.
Four of the counts (counts 14, 15, 17 and 28) charged the appellant with procuring a child to make child abuse films under section 35 of the Film and Videotape Classification Act 1984. The Court identified a significant problem with those four counts: the Act under which they were charged had been repealed with effect from 1 January 1996, before any of the alleged offending occurred.
Legal Issues
- Whether the sentencing judge had erred in weighing the subjective features of the appellant's case, including his guilty pleas and rehabilitation prospects
- Whether convictions and sentences on four counts could stand where those counts had been charged under legislation that was repealed before the alleged offending took place
Decision
On the principal sentencing challenge, the Court found no error in the primary judge's approach. Sully J reviewed the remarks on sentence carefully and concluded that the judge had been fully and correctly aware of both the objective gravity of the offences and the relevant subjective factors. Proper weight had been given to each in the overall sentencing exercise.
The Court was firm about the objective seriousness of the conduct, describing the offences as acts of grave culpability perpetrated upon young and vulnerable victims in an atmosphere of deliberate psychological overbearing. Because no error was identified in the primary sentencing process, the Court declined to intervene on the sentence appeals for all counts except the four charged under the Film and Videotape Classification Act 1984.
As to those four counts, the Court held that a clear miscarriage had occurred. The Film and Videotape Classification Act 1984 had been repealed and replaced by the Classification (Publications, Film and Computer Games) Enforcement Act 1995, both changes taking effect from 1 January 1996. Since the alleged offending on those counts occurred entirely within the period from 1 January 1996 to 1 April 1997, the charges had been laid under legislation that no longer existed at the time of either the conduct or the charge. The convictions and sentences on those four counts could not stand.
Orders Made
- Leave to appeal against sentence granted
- As to counts 14, 15, 17 and 28: the appeal against sentence allowed, and the terms of imprisonment imposed in respect of each of those counts quashed
- As to all other sentences: the appeals against sentence dismissed
Key Takeaways
- A conviction cannot stand where the charge is laid under legislation that had been repealed before the alleged offending occurred. The Court of Criminal Appeal quashed four convictions on that basis.
- No error was established in the primary sentencing process for the remaining 24 counts, and the Court of Criminal Appeal declined to intervene on those sentences.
- The correct starting point for a sentence appeal is the identification of a demonstrated error in the primary sentencing process, not a fresh sympathetic review of subjective circumstances.
- Post-sentence conduct and rehabilitation efforts, while noted, did not alter the outcome where no underlying error in the original sentence was established.
- Under the legislative transition from the Film and Videotape Classification Act 1984 to the Classification (Publications, Film and Computer Games) Enforcement Act 1995, charges relating to conduct occurring on or after 1 January 1996 needed to be brought under the new legislation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61N(1), 61O(2) (including former references to ss 600(2) and 610(2))
- Film and Videotape Classification Act 1984 (repealed with effect from 1 January 1996)
- Classification (Publications, Film and Computer Games) Enforcement Act 1995 (NSW)
Cases cited: None identified in the provided text.