Citation: Wickham v R [2004] NSWCCA 193
Court: New South Wales Court of Criminal Appeal
Date: 17 June 2004
Judge(s): Bell J, Howie J, Hislop J
Background
The applicant, a 63-year-old man with a significant history of sexual offending, pleaded guilty on the second day of trial to two counts of sexual intercourse with a person with an intellectual disability, contrary to s 66F(3) of the Crimes Act 1900. The offences were committed against a mentally disabled neighbour in November 2000, approximately three months after the applicant's parole expired following a nine-year sentence for sexual assaults on his own children.
Acting Judge Ducker sentenced the applicant in the District Court to a principal term of four years imprisonment (with a three-year non-parole period) for the more serious count, and two years six months (with a 20-month non-parole period) for the other, both commencing 11 December 2003. The applicant was in poor health at the time of sentencing, suffering from chronic asthma and ischemic heart disease.
The applicant sought leave to appeal on two grounds: first, that the sentencing judge had wrongly treated the victim's vulnerability and the applicant's intention to exploit it as aggravating factors under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, and second, that the judge had failed to adequately account for the applicant's ill health. On the second ground, the applicant sought to tender fresh medical evidence not before the sentencing court.
Legal Issues
- Whether the sentencing judge erred by treating the victim's vulnerability and the applicant's exploitative intention as aggravating factors under s 21A(2)(l), given that those matters formed elements of the offence itself
- Whether the Court of Criminal Appeal should receive fresh medical evidence about the applicant's health deterioration arising after sentence
- Whether, if either ground was established, the resulting error warranted a reduction in the sentences imposed
Decision
On the first ground, Howie J accepted that elements of the offence cannot ordinarily be relied upon again as separate aggravating factors at sentence, as to do so would constitute impermissible double-counting. However, his Honour found that the specific circumstances of the victim's vulnerability and the applicant's purposeful exploitation of it went beyond merely satisfying the statutory elements. Those facts, on the evidence before the sentencing judge, legitimately informed the objective seriousness of the offences and were not simply re-visited as bare elements.
Even setting that analysis aside, Howie J expressed the view that the sentences imposed were lenient given the applicant's criminal antecedents and the need to protect the community from a persistent sexual predator. Any error in the technical characterisation of aggravating factors therefore produced no appealable injustice, because a lesser sentence would have been manifestly inadequate.
On the second ground, the Court declined to receive the fresh medical report. The applicant's poor health had been clearly in evidence before Judge Ducker, and the applicant's legal representatives had chosen not to seek an adjournment to obtain updated material. Howie J reaffirmed that the discretion to admit post-sentence evidence on appeal is exceptional and narrow. The new report did not disclose circumstances sufficiently rare or exceptional to enliven that discretion, particularly where the applicant's health had already weighed in his favour at sentence.
The Court also observed, more broadly, that poor health does not automatically entitle an offender to a reduced sentence. The seriousness of the offending, the offender's risk to the community, and the need for deterrence and denunciation are all relevant considerations that may outweigh the hardship of imprisonment in any given case.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Under s 21A of the Crimes (Sentencing Procedure) Act 1999, a sentencing court cannot treat a matter that forms an element of the offence as a freestanding aggravating factor, as this constitutes impermissible double-counting. However, the specific factual circumstances underpinning those elements may still be relevant to assessing the objective seriousness of the offence.
- Even where a sentencing error is established in the characterisation of aggravating factors, the Court of Criminal Appeal will not intervene if the resulting sentence is not excessive and any correction would produce an inadequate outcome.
- The discretion to receive fresh evidence on a sentence appeal is characterised as rare and exceptional. An applicant who had the opportunity to place updated evidence before the sentencing court and declined to do so faces a high threshold in seeking to rely on that material for the first time on appeal.
- Poor health at the time of sentencing does not automatically produce a reduction in sentence. The weight given to an offender's medical condition will depend on the gravity of the offending, the risk posed to the community, and the objectives of deterrence and denunciation.
- In dismissing the appeal, the Court noted that the sentences imposed were arguably lenient given the applicant's persistent sexual offending history and the vulnerability of the victim, reinforcing that community protection can be a weighty sentencing consideration in cases involving repeat offenders.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66F(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases:
- R v Kier [2004] NSWCCA 106
- R v L (NSWCCA, unreported, 17 June 1996)
- R v Shankley [2003] NSWCCA 253
- R v Johnson [2004] NSWCCA 76
- R v Previtera (1997) 94 A Crim R 76
- R v Santamaria (2001) 126 A Crim R 99
- Wise v R [1965] Tas SR 196
- R v Boyd [1975] VR 168
- R v De Simoni (1981) 147 CLR 383
- Weininger v The Queen (2003) 212 CLR 629
- R v Fordham (1997) 98 A Crim R 359
- R v Ashton (2002) 137 A Crim R 73