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7
Court of Criminal Appeal 25 November 2005

R v Wicks

[2005] NSWCCA 409

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE SEX OFFENCES OUTSIDE AUSTRALIA MULTIPLE VICTIMS MULTIPLE OFFENCES

Citation: R v Wicks [2005] NSWCCA 409
Court: NSW Court of Criminal Appeal
Date: 25 November 2005
Judge(s): McClellan CJ at CL, Adams J, Hoeben J

Background

The respondent, a 43-year-old man from regional New South Wales, travelled to Thailand in February and March 2003 and paid to engage in sexual activity with multiple male children aged between approximately 12 and 15 years. He also induced victims to engage in sexual acts with one another, and video-recorded the activity. He was identified following a multinational police investigation into child pornography distribution, and a search of his home uncovered hard drives, video cassettes, and other material constituting child pornography, along with handwritten notes of Thai language phrases with sexual connotations.

The respondent pleaded guilty in the District Court to six offences under the Crimes Act 1914 (Cth): four counts of sexual intercourse with a person under 16 outside Australia (s 50BA(1)), one count of inducing a person under 16 to commit an act of indecency outside Australia (s 50BD(1)), and one count of inducing a person under 16 to have sexual intercourse with another person outside Australia (s 50BB(1)). The maximum penalties were 17 years for the s 50BA and s 50BB offences and 12 years for the s 50BD offence.

The sentencing judge imposed terms of imprisonment on each count but ordered all sentences to be served concurrently. The Crown appealed, arguing that the sentences failed to adequately reflect the criminality of the respondent's conduct, the need for deterrence, and the aggravating features of the offending.

  • Whether the sentencing judge failed to impose a sentence of an adequate standard and level to reflect the seriousness of the offending
  • Whether the sentences adequately accounted for the elements of deterrence, the vulnerability of the victims, and the aggravating features of the offending
  • Whether the sentencing judge erred by ordering all sentences to be served fully concurrently, given that the offences involved multiple victims and multiple separate acts

Decision

The Court of Criminal Appeal upheld the Crown appeal, though it did not disturb the individual sentence lengths imposed by the sentencing judge. McClellan CJ at CL, with whom Adams J and Hoeben J agreed, found that the individual head sentences and non-parole periods for each offence were at the lowest end of the available range but were not so outside that range as to require intervention by an appellate court on their own terms.

The Court identified the critical error as the sentencing judge's decision to impose all sentences concurrently, with no accumulation. Where an offender commits sexual offences against multiple different victims, even within a short period and as part of a single enterprise, full concurrency is not appropriate. The Court reasoned that offenders who deliberately target multiple victims can expect at least some of their sentences to be served consecutively.

The Court applied the principle, drawn from several earlier decisions, that full concurrency fails to reflect the distinct criminality involved in each act against each separate victim. In this case, the offences spanned multiple children across a deliberate and premeditated course of conduct. The sentencing judge's failure to accumulate any of the sentences was identified as a miscarriage of the relevant discretion.

Giving effect to the principle that a Crown appeal should result in the minimum adjustment necessary to correct the error, the Court accumulated the s 50BB sentence by two years, commencing it partway through the running of the concurrent s 50BA sentences. The non-parole periods were adjusted correspondingly.

Orders Made

  • The Crown appeal was upheld and the original sentences were quashed
  • On each of the four counts contrary to s 50BA(1): five years imprisonment expiring 7 June 2010, with a non-parole period of three years expiring 7 June 2008 (all concurrent with each other)
  • On the count contrary to s 50BD(1): three years imprisonment expiring 7 June 2008
  • On the count contrary to s 50BB(1): five years imprisonment commencing 8 June 2007 and expiring 7 June 2012, with a non-parole period of three years expiring 7 June 2010

Key Takeaways

  • Fully concurrent sentences are generally inappropriate where an offender commits sexual offences against multiple distinct victims, even when the offending occurs over a short period as part of a single overseas trip
  • The Court of Criminal Appeal confirmed that deliberate, premeditated child sex tourism involving the exploitation of economically vulnerable children is a significant aggravating feature that sentencing courts must give proper weight
  • In a Crown appeal, the appellate court applies restraint: it will correct an identified error but will impose only the minimum adjustment necessary, rather than re-sentencing afresh to what it might independently regard as an appropriate term
  • Where individual sentence lengths fall within an available range, an error in the overall sentencing structure, such as the failure to accumulate any sentences at all, can still constitute a miscarriage of sentencing discretion warranting appellate intervention
  • Offences under the Crimes Act 1914 (Cth) targeting children outside Australia carry maximum penalties of up to 17 years imprisonment, and sentences must reflect the serious legislative condemnation of such conduct

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 50BA(1), 50BB(1), 50BD(1), 16A
- Crimes Act 1900 (NSW)
- Criminal Law Consolidation Act 1935 (SA)
- Criminal Code 1913 (WA)

Cases
- R v Bilal Skaf [2005] NSWCCA 297
- R v Dunn [2004] NSWCCA 41
- R v AB & Clifford [2005] NSWCCA 360
- R v Weldon (2002) 136 A Crim R 55
- Weininger v The Queen (2003) 212 CLR 629
- Bell v R [2001] WASCA 40
- Kaye v R [2004] WASCA 227
- R v AJW (2001) 80 SASR 246
- R v D (1997) 69 SASR 413
- R v LLK (2003) 146 A Crim R 1
- R v Baker [2000] NSWCCA 85
- R v H [2001] NSWCCA 117
- R v Pearson [2005] NSWCCA 116
- R v Percival [2001] NSWCCA 429
- R v MD, BM, NA, JT [2005] NSWCCA 342
- R v Levi (1997) unreported, NSWCCA, 15 May 1997