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Court of Criminal Appeal 17 October 2001

R v Wisbey

[2001] NSWCCA 434

Sexual offences
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE SEXUAL OFFENCES AGAINST CHILDREN NO ERROR OF LAW

Citation: Wisbey v R [2001] NSWCCA 434
Court: New South Wales Court of Criminal Appeal
Date: 17 October 2001
Judge(s): Wood CJ at CL; Grove J

Background

The applicant, an adult male with congenital deafness, limited literacy, and a serious bowel condition, pleaded guilty to multiple sexual offences against young boys. The offences spanned several years and involved three victims aged eight and thirteen years. The conduct included sexual intercourse and indecent touching, committed while the applicant was on bail for earlier sexual offending and, in two instances, during a supervised Griffiths remand period intended to allow him to engage with counselling.

The sentencing court (Sides DCJ in the District Court) had previously adjourned proceedings on more than one occasion to give the applicant the opportunity to demonstrate progress in counselling and therapy. When it became clear he had not meaningfully engaged, his bail was revoked and sentences were imposed across the indictment count and three further counts dealt with by way of a section 51A document.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing that the total sentence was manifestly excessive and that the sentencing judge had given too much weight to general deterrence.

  • Whether the aggregate sentence was manifestly excessive in all the circumstances, including the applicant's significant personal disabilities and subjective circumstances
  • Whether the sentencing judge erred by giving undue weight to general deterrence, particularly given the applicant's personal difficulties and limitations
  • Whether accumulating the sentences for the section 51A offences upon the fixed term for the indictment offence was appropriate

Decision

The Court of Criminal Appeal found no error of law in the sentencing judge's approach. The sentencing judge had expressly recognised that general deterrence was of limited relevance in this case, given the applicant's particular circumstances. The accumulation of sentences was therefore not driven by a deterrence rationale, but rather reflected the principle of totality, that is, ensuring the overall sentence corresponded to the full extent of the criminality involved across all offences.

The Court noted that the sentencing judge had given real weight to the applicant's subjective circumstances, including his congenital deafness, emotional and social immaturity, Crohn's disease, and his acknowledged vulnerability within the prison system. Notwithstanding those matters, the nature and number of the offences, the repeated commission of offences while on bail, and the failure of all prior non-custodial sentencing options justified a custodial sentence.

The Court also observed that the Probation and Parole Service, which had been involved with the applicant since 1995, had assessed him as unable to be effectively supervised in the community. Periodic detention or a suspended sentence were not considered appropriate given the applicant's record and the gravity of the offending. Leave to appeal was granted, but the appeal was dismissed.

Wood CJ at CL added remarks urging the Corrective Services system to attend to the applicant's particular medical and communication needs while in custody, and to provide one-on-one counselling directed at rehabilitation. Grove J associated himself with those remarks.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • A copy of the Court's remarks to be provided to Corrective Services

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that accumulating sentences to reflect the totality of an offender's criminality is a legitimate sentencing tool and does not necessarily indicate impermissible reliance on general deterrence.
  • Where a sentencing judge expressly acknowledges that general deterrence is of limited relevance to a particular offender, an appeal ground based on over-emphasis of that factor is unlikely to succeed.
  • Significant personal disability and vulnerability do not automatically render a custodial sentence manifestly excessive, particularly where the offending is serious, repeated, and committed in breach of bail conditions and supervision orders.
  • A prior history of failed non-custodial sentencing options is a relevant factor supporting a conclusion that a custodial sentence is warranted, even where the offender has considerable subjective circumstances in their favour.
  • The Court of Criminal Appeal used its remarks to highlight an obligation on Corrective Services to address the medical and communication needs of vulnerable inmates, though this observation did not form part of the formal orders.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J (aggravated sexual intercourse without consent)
- Crimes Act 1900 (NSW), s 66C(1) (sexual intercourse with a child aged 10 to 16)

Cases:
- R v Tripodina [2001] NSWCCA 136 (cited for principles on accumulation and totality)