AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
8
Court of Criminal Appeal 2 May 2005

Regina v McQueeney

[2005] NSWCCA 168

Sexual offences
CRIMINAL LAW VEEN CONSIDERATIONS.

Citation: Regina v McQueeney [2005] NSWCCA 168
Court: NSW Court of Criminal Appeal
Date: 2 May 2005
Judge(s): Grove J, Howie J, Latham J

Background

The applicant, a 62-year-old man, was employed as a seasonal fruit picker on a family farm in Somersby in 2003. Over a period of months he cultivated relationships with two nine-year-old stepbrothers on the property, giving them gifts and taking them on outings. He then committed a series of sexual offences against both boys.

At the Gosford District Court, the applicant pleaded guilty to one count of attempted sexual intercourse with a child under 10 (the more serious of the two indictment counts, concerning one complainant) and one count of aggravated indecent assault (concerning the other complainant). Two further offences were taken into account on a Form 1 document for each indictment count. The maximum penalty for the attempted sexual intercourse offence is 25 years imprisonment.

The sentencing judge imposed 10 years with a non-parole period of seven years for the attempted sexual intercourse offence, partially accumulated upon a four-year sentence with a three-year non-parole period for the aggravated indecent assault. The effective head sentence was 11.5 years with an 8.5-year non-parole period. The applicant sought leave to appeal on grounds that the sentence was manifestly excessive and that the sentencing judge had misapplied the law regarding prior convictions.

  • Whether the sentencing judge erred in treating the applicant's prior convictions for sexual offences against children as an aggravating feature of the current offences, contrary to the principles in Veen v The Queen [No 2] (1988) 164 CLR 465
  • Whether the 10-year sentence for the attempted sexual intercourse offence was outside the available range
  • Whether the partial accumulation of the two sentences, resulting in an effective head sentence of 11.5 years, was manifestly excessive having regard to the totality principle

Decision

Prior convictions as aggravation

The Court found that the sentencing judge had fallen into error by treating the applicant's criminal history as an aggravating feature of the offences themselves. The Veen principles establish that prior convictions may be relevant to an offender's prospects of rehabilitation and the assessment of future risk, but they cannot be used to increase the punishment for the current offences beyond what is proportionate to those offences. The judge's remarks on sentence suggested that the prior record elevated the seriousness of the offending itself, which is impermissible.

The 10-year sentence for the attempted sexual intercourse offence

Despite finding the above error, the Court was not persuaded that the 10-year sentence was outside the available range. The offending was serious: the applicant had removed the complainant's clothing and was actively engaged in an attempt at penetration, halted only because the victim awoke. The Court described the sentence as one that may sit towards the top of the range but held that this alone was insufficient to warrant intervention.

Totality and accumulation

The Court accepted the applicant's argument that the extent of accumulation was excessive. The offending spanned approximately three months, a relatively short period compared with cases of prolonged familial abuse. In the Court's assessment, an accumulation of six months was sufficient to reflect the commission of offences against two separate complainants. The original accumulation of 18 months was therefore reduced.

Orders Made

  • Leave to appeal granted; appeal allowed in part.
  • Sentence on the charge of Attempted Sexual Intercourse with a Child under 10, quashed.
  • In substitution, a sentence of 10 years was imposed commencing 2 March 2004 and expiring 1 March 2014, with a non-parole period of 7 years commencing 2 March 2004 and expiring 1 March 2011.

Key Takeaways

  • The Veen principles, as applied by the Court of Criminal Appeal, prohibit a sentencing court from using an offender's prior criminal history to aggravate the objective seriousness of the current offences; prior convictions may inform risk assessment and rehabilitation prospects, but not inflate punishment beyond what proportionality demands.
  • An error in the application of the Veen principles does not automatically lead to a reduced sentence if the sentence imposed falls within the available range on the objective facts alone.
  • Where a defendant has committed offences against multiple victims, some accumulation of sentences is appropriate to reflect the distinct criminality; however, the totality principle constrains how much accumulation is permissible.
  • Duration of offending is a relevant consideration when assessing totality: a three-month period of offending attracted less accumulation than would be warranted in cases involving prolonged or familial abuse extending over years.
  • Sentences situated towards the upper end of the available range do not, without more, attract appellate intervention from the Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66B
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Veen v The Queen [No 2] (1988) 164 CLR 465
- Ibbs v The Queen (1987) 163 CLR 447
- R v Taouk [1992] A Crim R 387
- R v Booker (unreported, NSW CCA, 21 February 1996)
- R v Davis [1999] NSW CCA 15
- R v Campbell [2001] NSW CCA 89
- R v CDH [2002] NSW CCA 103
- R v Hollis [2002] NSW CCA 306
- R v Lupton [2003] NSW CCA 200
- R v Shankley [2003] NSW CCA 253
- R v Johnson [2004] NSW CCA 76
- R v Selsby [2004] NSW CCA 381
- R v Wickham [2004] NSW CCA 193