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Court of Criminal Appeal 25 March 2002

Regina v GKW

[2002] NSWCCA 130

Sexual offences

Citation: Regina v GKW [2002] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 25 March 2002
Judge(s): Levine J; Carruthers AJ

Background

The applicant, a man born in 1950, was committed for sentence in the District Court at Bathurst following guilty pleas to four counts of aggravated indecent assault under s 61M(1) of the Crimes Act 1900. The victim was a twelve-year-old girl, the daughter of a family friend. The aggravating circumstance was the complainant's age, she being under sixteen at the time.

The offences occurred across three occasions between January and April 2000 and involved a range of sexual touching. The sentencing judge, Nield DCJ, found the conduct to be serious, deliberate, and in breach of trust, and noted that it had caused significant emotional harm to the complainant.

Nield DCJ imposed a combination of fixed terms and a head sentence with a non-parole period. The effective custodial exposure consisted of concurrent sentences for three of the counts, together with a discrete fixed term for the fourth. The applicant sought leave to appeal against those sentences in the Court of Criminal Appeal.

  • Whether Nield DCJ correctly applied the principles in Pearce v The Queen (1998) 194 CLR 610 when structuring the concurrent sentences across the four counts.
  • Whether the sentences imposed were so affected by error that the Court of Criminal Appeal should form the opinion, under s 6(3) of the Criminal Appeal Act, that some other sentence was warranted in law and should have been passed.

Decision

The applicant's principal argument was that Nield DCJ had not properly applied the Pearce principles and had instead worked backwards from a view of total appropriate punishment, then constructed individual sentences to fit that outcome. Carruthers AJ acknowledged some difficulty in fully justifying the precise analytical path taken below, but did not accept that this amounted to error warranting intervention.

The Court drew on the approach confirmed by Spigelman CJ in Regina v Simpson [2001] NSWCCA 534, which itself applied Dinsdale v The Queen (2000) 202 CLR 321. Those authorities establish that the statutory power to quash and re-sentence under s 6(3) requires the appellate court to form a positive opinion that some other sentence is warranted in law and should have been passed. It is not enough to identify an error in the sentencing process in isolation.

Carruthers AJ concluded that the objective and subjective circumstances did not justify forming that positive opinion. The subjective features considered by Nield DCJ included the applicant's age, prior good character, guilty pleas entered at the earliest opportunity (which carried significant utilitarian value), limited prospects of reoffending, health issues, and the impact of imprisonment on his young family. Against those factors, the judge weighed the seriousness of the offending, its deliberate nature, and the harm caused to a young complainant.

Levine J agreed with the orders proposed by Carruthers AJ. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Application for leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that identifying a possible error in the sentencing process is not, by itself, sufficient to warrant substitution of a different sentence. Under s 6(3) of the Criminal Appeal Act, the appellate court must form a positive opinion that some other sentence is warranted in law and should have been passed.
  • A guilty plea entered at the first available opportunity after service of the Crown brief carries significant utilitarian value in sentencing, reflecting facilitation of the administration of criminal justice.
  • Where a sentencing judge's precise analytical method of applying the Pearce totality principles may be open to some criticism, that alone does not compel appellate intervention if the resulting sentences are not otherwise shown to fall outside the range warranted by law.
  • The District Court's careful consideration of subjective factors, including good character, early guilty pleas, low risk of reoffending, and family circumstances, was acknowledged as relevant mitigation even against serious and deliberate offending against a child.
  • In dismissing the appeal, the Court reinforced the restraint that appellate courts exercise in sentence appeals, consistent with the principles in Dinsdale and Simpson.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(1) (aggravated indecent assault)
- Criminal Appeal Act (NSW), s 6(3)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Dinsdale v The Queen (2000) 202 CLR 321
- Regina v Simpson [2001] NSWCCA 534