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5
Court of Criminal Appeal 3 May 2001

Regina v W

[2001] NSWCCA 172

Sexual offences

Citation: Regina v W [2001] NSWCCA 172
Court: NSW Court of Criminal Appeal
Date: 3 May 2001
Judge(s): Mason P, Sully J, Dowd JA

Background

The applicant pleaded guilty in the District Court to seven counts of serious sexual offending against young boys, including buggery, homosexual intercourse with males under 18, attempted homosexual intercourse with a male under 18, and sexual intercourse without consent. A further 11 offences involving five of those same victims were taken into account on a schedule at sentencing. The victims ranged in age from approximately 10 to 17 years old, and the offending was described by the Court as systematic, exploitative, and of the gravest objective seriousness.

The sentencing judge in the District Court imposed an effective total sentence of ten years and six months, structured as a minimum term of eight years and an additional term of two years and six months. The applicant then sought leave to appeal to the Court of Criminal Appeal on the ground that the sentence was manifestly excessive, relying on what he described as fresh evidence of assistance he had provided to law enforcement authorities between March and July 1996.

  • Whether the proposed fresh evidence of the applicant's assistance to law enforcement satisfied the three-part test for admission on a sentence appeal
  • Whether, if admitted, that fresh evidence justified the Court of Criminal Appeal interfering with the sentence imposed in the District Court
  • Whether the overall effective sentence of ten years and six months was warranted in law having regard to the objective gravity of the offences

Decision

Sully J (with whom Mason P and Dowd JA agreed) identified the three criteria that must be satisfied on the probabilities before fresh evidence can ground a sentence appeal. The proposed material must: (1) be significant enough that the sentencing judge may have regarded it as having a real bearing on the outcome; (2) have had its significance unrealised by the applicant at the time of sentencing, even if its existence was known; and (3) not have been made known to the applicant's legal advisers at the time. These criteria derive from the Court of Criminal Appeal's decision in Goodwin (1990).

Sully J accepted that criteria one and three were satisfied. The Court found that the applicant had, in fact, provided assistance of some apparent substance during the relevant period, and that his legal advisers were unaware of it. However, Sully J expressed doubt about whether criterion two was satisfied. The evidence suggested the applicant was aware, at least in general terms, that co-operation with law enforcement could be relevant to sentencing, yet he withheld the information primarily out of fear for his safety rather than through genuine ignorance of its legal significance.

Even setting aside that reservation and accepting all the fresh evidence, the Court concluded that no interference with the sentence was justified. The offences were of extreme gravity involving the systematic abuse of multiple vulnerable children, including an act of anal rape against a 13 or 14 year old. Sully J drew on the principle in Gallagher (1991) that courts must maintain proper public confidence in the administration of criminal justice, and that a substantial reduction in sentence on the given facts would produce a result the public would find repugnant to their sense of justice. Tinkering with the sentence would have been equally inappropriate.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The three-part test from Goodwin (1990) governs applications to admit fresh evidence on a sentence appeal: the material must be potentially significant to the original sentence, its significance must have been unrealised by the applicant at the time, and it must not have been disclosed to defence lawyers at sentencing.
  • Where an applicant withheld information from legal advisers primarily out of fear rather than genuine ignorance of its relevance to sentencing, the second limb of the Goodwin test may not be satisfied.
  • Even where fresh evidence clears the admissibility threshold, the Court of Criminal Appeal retains a residual discretion and is required by section 6 of the Criminal Appeal Act 1912 to dismiss an appeal unless it is satisfied a different sentence is "warranted in law."
  • In dismissing the appeal, the Court reaffirmed the principle from Gallagher (1991) that sentences must maintain public confidence in the administration of criminal justice, and that resourceful forensic argument cannot be allowed to produce a result the properly informed public would regard as wholly repugnant.
  • The objective gravity of the underlying offending remained the dominant consideration, and assistance to law enforcement, even if accepted as genuine, did not carry sufficient weight to justify reducing an otherwise appropriate sentence for multiple serious sexual offences against children.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW)

Cases
- Goodwin (1990) 51 A Crim R 328
- Astill No. 2 (1992) 64 A Crim R 305
- Gallagher (1991) 23 NSWLR 220
- Fisk, unreported, NSW Court of Criminal Appeal, 21 July 1998