Citation: REGINA v Graham WILLIAMS [2002] NSWCCA 458
Court: New South Wales Court of Criminal Appeal
Date: 15 November 2002
Judge(s): Wood CJ at CL, Dowd J, Bell J
Background
The applicant, a professional masseur in his mid-sixties, pleaded guilty in the District Court at Broken Hill to fourteen counts of sexual offences committed against clients during massage sessions. The offences involved both a fifteen-year-old complainant and several adult complainants. Judge Price sentenced the applicant to an effective overall term of five years and two months imprisonment with a non-parole period of three years.
The applicant initially filed a notice of application for leave to appeal against the severity of the sentence on count 1, which charged aggravated sexual intercourse without consent involving the minor complainant. He later filed a notice of abandonment, believing he could not appear in person to prosecute the application. Once he learned he could appear personally, he sought to have the matter relisted.
At the hearing, the applicant confirmed he was not seeking to disturb his guilty plea or conviction. His challenge was confined solely to the proposition that the sentence on count 1 was excessive given the brief and superficial nature of the conduct involved.
Legal Issues
- Whether the Court should permit the applicant to proceed despite having filed a notice of abandonment of his appeal
- Whether the sentence of three years and nine months imprisonment (with a two-year non-parole period) on count 1 was excessive, having regard to the objective seriousness of the offending
Decision
The Court granted leave to proceed behind the notice of abandonment, accepting the applicant's explanation that he had abandoned the appeal under a mistaken belief that he could not appear in person without legal aid.
On the question of sentence severity, the Court rejected the applicant's central submission that the brief and non-penetrative nature of the conduct on count 1 rendered the sentence excessive. Bell J observed that brevity of duration and the absence of vaginal penetration are not determinative answers to the seriousness of an offence that constituted a significant interference with the bodily integrity of a fifteen-year-old. The Court noted that Judge Price had carefully considered the applicant's subjective circumstances, including his age, prior good character, remorse, and the collateral consequences he suffered, and had applied a twenty-five per cent discount for early guilty pleas.
The applicant's reliance on R v Muldoon was not accepted as supporting a finding of error. The Court noted that sentences substituted on a successful Crown appeal are conventionally set at the lower end of the appropriate range, making direct comparisons with that case unhelpful. A sentence of three years and nine months with a two-year non-parole period was held to be well within the sentencing judge's discretion on a charge carrying a maximum of twenty years imprisonment.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a notice of abandonment does not permanently foreclose an applicant's right to seek leave to appeal where the abandonment resulted from a genuine misunderstanding about the right to appear in person.
- A conviction for aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900 carries a maximum of twenty years imprisonment; a sentence of three years and nine months for a single serious offence against a minor was found to fall comfortably within the available range.
- The brevity of the offending conduct and the absence of vaginal penetration were held not to diminish the objective seriousness of the offence, which involved a significant breach of trust and a significant interference with the bodily integrity of a fifteen-year-old.
- Sentences substituted by an appellate court on a successful Crown appeal against leniency are conventionally set at the lower end of the appropriate range, limiting their utility as comparators in appeals against severity.
- In dismissing the appeal, the Court emphasised that Judge Price had taken into account all relevant subjective factors, including the applicant's age, good character, remorse, and the personal consequences flowing from the offending coming to light.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 61I (sexual intercourse without consent), 61J (aggravated sexual intercourse without consent), 61L (indecent assault), 61M (aggravated indecent assault)
Cases:
- R v Muldoon (unreported), NSWCCA, 13 December 1990