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Court of Criminal Appeal 30 March 2005

R v GWM

[2005] NSWCCA 101

Also reported as 152 A Crim R 482
Sexual offencesAssault & violence

Citation: R v GWM [2005] NSWCCA 101
Court: New South Wales Court of Criminal Appeal
Date: 30 March 2005
Judge(s): Studdert J; Hulme J

Background

The appellant (identified only as GWM) was convicted by a jury in the District Court of sexual intercourse with a child under ten years of age, following a trial on a three-count indictment concerning alleged sexual offences against a nine-year-old girl. The offences occurred on a single occasion in November 2002, when the complainant's mother briefly left the appellant to supervise her daughter. The appellant had also pleaded guilty to a charge of assault with an act of indecency in circumstances of aggravation arising from the same incident, which was the third count on the indictment.

At sentencing, the District Court imposed a fixed term of four years imprisonment for the third count, commencing 16 May 2003, and a sentence of six years six months with a non-parole period of four years for the first count, commencing 16 May 2004. The sentences were ordered to be partly cumulative, producing an effective total head sentence running to November 2010.

The appellant sought leave to appeal against his sentences, raising four grounds of error in the sentencing judge's approach.

  • Whether the sentence on the first count was manifestly excessive
  • Whether the sentencing judge erred in ordering partial accumulation of the two sentences rather than making them concurrent
  • Whether the sentencing judge wrongly treated the complainant's attendance at trial to give evidence as an aggravating circumstance
  • Whether insufficient weight was given to the appellant's psychiatric condition (diagnosed schizophrenia, history of attempted suicide, and brain damage from a 1984 road accident)

Decision

The Court of Criminal Appeal found that the sentence of six years six months with a four-year non-parole period for the principal offence was not in itself outside the available range, although it was at the upper end. The Court did not accept that the sentence was manifestly excessive when considered in isolation.

On the accumulation question, however, the Court intervened. Both offences arose from a single, continuous episode of criminal conduct occurring within the same brief period. The Court noted that, as a general principle, offences arising from one incident are ordered to be served concurrently. Given that the principal sentence was already at the top of the available range, the principle of totality required that the two terms run concurrently rather than cumulatively.

The Court accordingly quashed the sentence on the first count and resentenced the appellant on that count to the same term of six years six months, but with a commencement date of 16 May 2003 (rather than 2004), making both sentences concurrent from that date. The fixed term of four years on the third count was confirmed.

The Court did not find it necessary in its published reasons to make separate findings on each of the remaining three grounds, given that the totality issue was determinative of the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal allowed, limited to the sentence imposed on the first count
  • Sentence on the first count quashed
  • In lieu thereof, the appellant sentenced to six years six months imprisonment commencing 16 May 2003 and expiring 15 November 2009, with a non-parole period of four years expiring 15 May 2007
  • Fixed term of four years imprisonment on the third count, commencing 16 May 2003, confirmed

Key Takeaways

  • Where two or more offences arise from a single, continuous criminal episode, the general sentencing principle is that the terms should be served concurrently rather than cumulatively.
  • The totality principle operates as a constraint on cumulation: even where an individual sentence is within the available range, a partly cumulative structure may produce a total sentence that is disproportionate and must be corrected on appeal.
  • A sentencing court is entitled to approach self-serving psychiatric history with considerable caution where the offender has not given evidence of that history in the witness box, and where expert reports raise doubts about its reliability.
  • Under section 66A of the Crimes Act, sexual intercourse with a child under ten carries a maximum penalty of 20 years imprisonment, reflecting the legislature's recognition of the gravity of such offending.
  • Deciding whether to accumulate sentences is a discretionary exercise, but it must be conducted in accordance with established principles, including the principle of totality identified in cases such as R v Pearce (1998) 194 CLR 610 and Siganto v The Queen (1998) 194 CLR 656.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 55

Cases
- R v Pearce (1998) 194 CLR 610
- Siganto v The Queen (1998) 194 CLR 656
- R v Hammoud (2000) 118 A Crim R 66
- R v GLB [2003] NSWCCA 210
- R v SG [2003] NSWCCA 220
- R v CDH [2002] NSWCCA 103
- R v Campbell [2001] NSWCCA 89
- R v Davis [1999] NSWCCA 15
- R v OO [2002] NSWCCA 416
- R v M [2002] NSWCCA 66
- R v Smith [2003] NSWCCA 353
- R v Morgan (1993) 70 A Crim R 368
- R v Morrow [1999] NSWCCA 64
- R v Rapley [1999] NSWCCA 302
- R v Mendoza-Torrico [1999] NSWCCA 413
- R v Brackenrig (unreported, NSWCCA, 25 July 1995)
- R v Ala (unreported, NSWCCA, 11 November 1996)