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Court of Criminal Appeal 21 February 2000

R v Presta

[2000] NSWCCA 40

Sexual offencesAssault & violencePublic order & justice offences
CRIMINAL LAW AND PROCEDURE MULTIPLE VICTIMS SADISM SENTENCE

Citation: R v Presta [2000] NSWCCA 40
Court: New South Wales Court of Criminal Appeal
Date: 21 February 2000
Judge(s): Grove J; Greg James J

Background

The appellant pleaded guilty in the District Court to five counts of kidnapping and 21 counts of aggravated sexual assault involving five victims. A further ten offences involving two additional victims were taken into account on a Form 1, including an assault occasioning actual bodily harm and a sexual offence against a 15-year-old.

The offences involved the appellant abducting young men at gunpoint, transporting them to his home, restraining them, and subjecting them to prolonged and severe sexual and physical violence. The appellant had video-recorded his conduct, and those recordings were located by police during a search. He initially feigned ignorance when approached by police before confessing after the videos were found.

The sentencing judge, O'Reilly DCJ in the District Court, imposed concurrent fixed terms of 14 years penal servitude on the kidnapping counts and on most of the aggravated sexual assault counts. On one aggravated sexual assault count, his Honour imposed a total sentence of 19 years, comprising a minimum term of 14 years and 3 months and an additional term of 4 years and 9 months. The effective custodial order was a minimum term of 14 years and 3 months with an additional term of 9 months. The appellant sought leave to appeal against the severity of those sentences.

  • Whether the sentencing judge erred in ascertaining the facts upon which the appellant was to be sentenced
  • Whether the sentencing judge erred in failing to take into account the appellant's background and personal circumstances, including any prior victimisation
  • Whether the sentencing judge erred in failing to find special circumstances under s 5(2) of the Sentencing Act, which would have extended the additional (parole-eligible) term
  • Whether the sentencing judge failed to give adequate weight to the prospect of the appellant's rehabilitation
  • Whether the sentences imposed were manifestly excessive

Decision

The Court of Criminal Appeal refused each ground of appeal and dismissed the appeal, granting leave but finding no error in the sentences imposed.

On the factual basis for sentencing, the Court found no error. The facts document had been tendered without objection, and the minor variations the appellant sought to raise were acknowledged by his own legal representative at the time to be of very little consequence. The Court found the sentencing judge had acted appropriately in drawing on that document.

On personal circumstances and background, the Court acknowledged that prior victimisation of an offender may, in appropriate cases, carry some weight in sentencing. However, no error was identified in the way the sentencing judge balanced those considerations against the objective seriousness of the offences. Similarly, the Court found no error in the refusal to make a finding of special circumstances or in the treatment of rehabilitation as a sentencing factor.

On manifest excess, the Court held that the sentences were entirely appropriate to the overall circumstances of both the crimes and the offender. Greg James J added that many people might regard the sentences as lenient, and indeed very lenient, given the totality of the conduct.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where a facts document is tendered without objection and minor disputed variations are acknowledged to be of little consequence, a sentencing judge commits no error in relying on that document.
  • A convicted offender's personal history, including any prior victimisation, may in an appropriate case attract some weight in sentencing, but this does not require a reduction where the objective seriousness of the offending is extreme.
  • No error was established in the sentencing judge's refusal to find special circumstances under the Sentencing Act where nothing in the material warranted an extension of the parole-eligible portion of the sentence.
  • The Court of Criminal Appeal's jurisdiction on sentence appeals is enlivened only where it forms the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed.
  • Greg James J observed that the sentences, while upheld as not excessive, might in the view of many be regarded as lenient given the totality and severity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 90A, 439(2)
- Sentencing Act (NSW), s 5(2)
- Criminal Appeal Act (NSW), s 6AA

Cases:
- R v Row (1995) 89 A Crim R 467