Citation: Regina v Barry [2001] NSWCCA 304
Court: Court of Criminal Appeal, New South Wales
Date: 10 August 2001
Judge(s): Smart AJ; Dowd J
Background
The applicant was convicted by jury after a ten-day trial in the District Court on multiple counts, including three counts of buggery and numerous counts of indecent assault, arising from conduct between 1979 and 1982. The offences were committed against two brothers, aged approximately 8 and 11 at the time the offending began. The applicant had befriended the boys and their mother, cultivated trust over time, and used that relationship to gain sustained access to both children.
At first instance, Judge Ainslie-Wallace DCJ sentenced the applicant to concurrent terms of imprisonment. On the two most serious buggery counts (counts 5 and 10), the sentence was 8 years with a non-parole period of 5 years. On a third buggery count (count 12), a fixed term of 5 years was imposed. All sentences commenced on 13 August 1999.
The applicant sought leave to appeal to the Court of Criminal Appeal, contending that the non-parole periods on the buggery counts were excessive. By the time of the appeal hearing, the sentences on all other counts were about to be served, making those sentences of academic interest only.
Legal Issues
- Whether the non-parole periods of 5 years on the buggery counts were excessive in the circumstances.
- Whether the sentencing judge erred in her treatment of rehabilitation, given the applicant had no relevant convictions in the approximately 17 years since the offending.
- Whether the sentencing judge incorrectly applied sections 44 and 45 of the Crimes (Sentencing Procedure) Act 1999 in imposing a fixed term on count 12 without providing reasons.
Decision
The Court of Criminal Appeal refused leave to appeal, finding no good reason to reduce the non-parole periods. Smart AJ held that the criminal conduct was of a grave order and that the acts of buggery committed against children who trusted the applicant compelled the sentences imposed. The Court found that any lesser sentence would have been inadequate to reflect the criminality involved.
On the question of rehabilitation, the Court acknowledged that the absence of any relevant conviction since 1982 was a matter of major importance. However, Smart AJ observed that a lack of convictions does not of itself establish that rehabilitation has occurred. The Court noted no useful supporting evidence on this question had been placed before the sentencing judge, who was unable to take rehabilitation into account as a result.
Regarding the fixed term imposed on count 12, the Court accepted the applicant's argument that the sentencing judge had not provided reasons and had not strictly complied with sections 44 and 45 of the Act. However, Smart AJ concluded that, given the non-parole periods already set on the other buggery counts, the failure to set a non-parole period on count 12 was effectively immaterial, described as "otiose." This error did not warrant intervention.
The statistics from the Judicial Commission, which the applicant's counsel sought to rely upon, were given little weight. The Court noted the relevant sample was small and that the offending had to be assessed in its full context. The cases cited by the applicant, including BJW and Pritchard, were distinguished on their facts.
Orders Made
- Application for leave to appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that concurrent sentences of 8 years with a non-parole period of 5 years for serious child buggery offences were not excessive where the conduct involved deliberate grooming and a sustained breach of trust over several years.
- A gap of approximately 17 years between the offending and sentencing, without any relevant conviction, does not automatically establish rehabilitation; a sentencing court requires positive evidence to treat rehabilitation as a mitigating factor.
- Where a sentencing judge fails to provide reasons for imposing a fixed term rather than a standard non-parole period, that error will not necessarily warrant appellate intervention if the practical effect on the overall sentence structure is negligible.
- Judicial Commission sentencing statistics were given limited weight in this case, with the Court noting both the small sample size and the importance of considering individual offences in their full factual context.
- In dismissing the application, the Court reiterated that the gravity of sexual offending against children, particularly where trust and access were systematically cultivated, demands sentences that adequately reflect that criminality.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44 and 45
Cases:
- BJW (2000) 112 A Crim R 1
- R v Pritchard (1999) 107 A Crim R 88