Citation: Regina v Andrew Robert Manners [2004] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 2 July 2004
Judge(s): Bell J (primary judgment); Howie J and Hislop J (agreeing)
Background
The Director of Public Prosecutions appealed against the sentence imposed by Nield DCJ in the Sydney District Court on 18 December 2003, arguing the sentence was inadequate. The respondent had pleaded guilty to one count of persistent sexual abuse of a child under s 66EA of the Crimes Act 1900, involving a girl aged nine to ten years who was his dance student.
The offending occurred over approximately eight months between March and October 2002. The conduct included kissing, digital touching of the complainant's genitalia and buttocks on multiple occasions, and photographing her genitalia with a digital camera. The respondent admitted the conduct in a recorded police interview and acknowledged he acted for his own sexual gratification, stating he was sexually attracted to children aged nine, ten and eleven.
The respondent had a substantial prior criminal history. He had been convicted in Queensland in 1998 of sexual offences against multiple child complainants and was on parole for those offences at the time he committed the subject offending. Despite being a prohibited person under child protection employment legislation, he concealed his status and continued teaching children at his mother's dance studio.
Legal Issues
- Whether the sentence of six years' imprisonment (with a non-parole period of four years and three months) was manifestly inadequate
- Whether the sentencing judge erred in his findings of fact or in applying sentencing principles, including the weight given to mitigating factors such as the respondent's childhood abuse, disability, and protective custody status
- Whether it was appropriate to reduce the sentence on account of the likelihood that the respondent would serve it as a protection prisoner
Decision
The Court of Criminal Appeal unanimously dismissed the appeal. Bell J, with whom Howie J and Hislop J agreed, found that the Crown had not identified any error in the sentencing judge's findings of fact or in his application of principle.
The sentencing judge had correctly identified and weighed numerous aggravating factors: the offending was planned; the respondent deliberately ingratiated himself with the complainant's family; the complainant was young and vulnerable; the respondent breached her trust and his position of authority; the abuse was repeated over many months; there was substantial emotional harm to the complainant; and the respondent was on parole for similar offences at the time. The judge had also appropriately allowed a 25% discount for the utilitarian value of the early guilty plea.
The Court accepted that the sentence could be regarded as lenient, particularly given the respondent was on parole for like offences when the subject offending occurred. However, leniency alone does not constitute appellable error. Bell J concluded the sentence, taking into account the 25% discount, did not fall outside the range of the sentencing judge's discretion.
On the question of protective custody, the Court noted a general caution against accepting, without evidence, that a sentence should be reduced on the assumption a prisoner will spend the entirety of their term in protection. However, the sentencing judge had found a likelihood of the respondent serving as a protection prisoner and treated this as a conventional mitigating consideration. The Court found no error in that approach.
Orders Made
- Appeal dismissed
Key Takeaways
- In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a sentence may appear lenient without being appellable error; the Crown must identify a specific error in fact-finding or principle before the appellate court will intervene.
- A 25% discount for the utilitarian value of an early guilty plea was upheld as properly applied to the head sentence before assessing overall adequacy.
- Under s 66EA of the Crimes Act 1900, the offence of persistent sexual abuse of a child captures a wide range of conduct carrying very different maximum penalties, meaning sentences across the spectrum will vary considerably depending on the nature of the underlying acts.
- Caution is warranted when sentencing courts reduce sentences on the basis that an offender will serve in protective custody, as conditions for protection prisoners vary across institutions and should not automatically be assumed to be more onerous.
- Prior sexual offending against children and commission of fresh offences while on parole for like conduct are significant aggravating factors, though they do not automatically render an otherwise within-range sentence inadequate.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 66EA (persistent sexual abuse of a child)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Child Protection (Prohibited Employment) Act 1998 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases
- Everett v R (1994) 181 CLR 295
- R v Baker [2000] NSWCCA 85
- R v Burchell (1987) 34 A Crim R 148
- R v Fitzgerald [2004] NSWCCA 5
- Regina v Kain [2004] NSWCCA 143
- R v Totten [2003] NSWCCA 207
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- Veen (No 2) v The Queen (1988) 164 CLR 465