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Court of Criminal Appeal 12 October 1999

R v Perry

[1999] NSWCCA 315

Sexual offences
SENTENCING OFFENCES AGAINST FOUR YOUNG BOYS

Citation: R v Perry [1999] NSWCCA 315
Court: NSW Court of Criminal Appeal
Date: 12 October 1999
Judge(s): Studdert J (with Newman J and Hulme J agreeing)

Background

The respondent pleaded guilty to eight counts of sexual offences against young boys on an indictment heard on 19 February 1999, and asked the sentencing judge to take into account eight further scheduled offences of a similar nature. Four days later, he pleaded guilty to a separate charge of attempted buggery on a further indictment. The victims were four boys, each offended against during a six-year period between 1979 and 1985 (with one scheduled offence extending to 1987). The respondent had groomed each victim by befriending their families and arranging outings with groups of children before isolating individual boys.

Judge Tupman in the District Court sentenced the respondent to concurrent terms of 18 months penal servitude to be served by way of periodic detention across all counts. Periodic detention is a non-custodial arrangement under which an offender reports to a detention centre on weekends rather than serving full-time imprisonment. The Crown appealed on the ground that the sentences were manifestly inadequate.

  • Whether the sentences imposed, resulting in periodic detention for 18 months across all offences, were manifestly inadequate given the objective gravity of the offending
  • What the appropriate sentence was on re-sentencing, having regard to the principle of double jeopardy applicable to Crown appeals and the time already served by the respondent

Decision

The Court of Criminal Appeal held that the sentencing judge had fallen into error. The offences were serious, involving a consistent and carefully planned pattern of grooming and sexual abuse of four different child victims over an extended period. The objective gravity of the conduct, the number of victims, and the multiplicity of offences were such that the resulting sentence of periodic detention was manifestly inadequate.

On the question of re-sentencing, the Court applied the double jeopardy principle that attaches to Crown appeals. Under this principle, the appellate court imposes a lesser sentence than it would have considered appropriate at first instance, to account for the respondent's exposure to a second sentencing process. The Court also credited the seven months of periodic detention already served by the respondent and noted his regular compliance with those obligations.

Taking into account the totality principle (which requires that the overall sentence reflect the full criminality of the conduct without crushing the offender) and the respondent's limited prior custodial experience, the Court found special circumstances under s 5(2) of the Sentencing Act. This permitted the Court to extend the non-parole period beyond the standard ratio, allowing for a longer period of supervision upon release.

Orders Made

  • Both appeals allowed.
  • All sentences previously imposed were quashed.
  • On counts 1 through 7 of the first indictment: concurrent sentences of three years penal servitude, with a minimum term of 18 months commencing 12 October 1999 and expiring 11 April 2001, and an additional term of 18 months commencing 12 April 2001; release on parole specified for 12 April 2001.
  • On count 8 of the first indictment: fixed term of three months penal servitude commencing 12 October 1999.
  • On the second indictment (attempted buggery): fixed term of 18 months penal servitude commencing 12 October 1999.

Key Takeaways

  • The Court of Criminal Appeal confirmed that periodic detention was not a proportionate response to a sustained and premeditated course of sexual offending against multiple child victims across nearly a decade.
  • A sentence that is formally within the available range may nonetheless be set aside on Crown appeal where the totality of the outcome is manifestly inadequate relative to the objective gravity of the conduct.
  • Where a Crown appeal against sentence succeeds, the double jeopardy principle operates to reduce the re-sentence below what the appellate court would otherwise have imposed at first instance.
  • Special circumstances within the meaning of s 5(2) of the Sentencing Act may be established by reference to an offender's limited prior custodial experience and age, justifying a longer period of post-release supervision relative to the minimum term.
  • Sentencing courts must have regard to the totality principle when imposing concurrent sentences across multiple serious charges, ensuring the combined sentence reflects the full weight of the criminal conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), ss 61E(1), 61E(1A), 80, 81
- Criminal Procedure Act (NSW), s 21
- Sentencing Act (NSW), s 5(2)

Cases:
- R v Johnson (unreported, NSWCCA, 16 May 1997)
- R v Barbara (unreported, NSWCCA, 24 February 1997)