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7
Court of Criminal Appeal 5 June 2006

Regina v Cunningham

[2006] NSWCCA 176

Sexual offences

Citation: Regina v Cunningham [2006] NSWCCA 176
Court: NSW Court of Criminal Appeal
Date: 5 June 2006
Judge(s): Grove J, Simpson J, Bell J

Background

The applicant pleaded guilty in the District Court at Parramatta to 18 counts of sexual offences against four girls, each aged under ten years. The offences were committed over approximately 15 months between January 2002 and April 2003. The applicant was in a position of trust with respect to each complainant: one was the child of his de facto partner, and the other three were children brought to his home for private tutoring.

The applicant was 58 years old at the time of the offences and had prior convictions for sexual offences against children. At the time of these offences, he was subject to a good behaviour bond imposed in 1998 following earlier convictions for indecent assault on children. Medical opinion assessed him as posing a significant ongoing risk of committing further offences.

The District Court sentenced him to an aggregate of 15.5 years' imprisonment with an effective non-parole period of 9.5 years. He sought leave to appeal on the grounds that the sentence was excessive, focusing in particular on the sentence imposed for one count of attempted sexual intercourse.

  • Whether the sentencing judge's notional starting point for the count of attempted sexual intercourse with a child under ten was excessive and fell outside the proper exercise of sentencing discretion.
  • Whether the starting point for that count improperly incorporated an element of preventive detention, contrary to the principles established in Veen v The Queen (No 1) and (No 2).
  • Whether the remaining sentences imposed on the other 17 counts were appropriate and should be confirmed.

Decision

The Court of Criminal Appeal granted leave to appeal and found that the sentencing judge's notional starting point for the count of attempted sexual intercourse was too high. Bell J, with whom Grove J and Simpson J agreed, concluded that the starting point exceeded the bounds of sentencing discretion. Grove J added that, accepting the judge's own finding that the offence was at the mid-range of seriousness, the starting point suggested an impermissible intrusion of preventive detention into the sentencing exercise.

The Court confirmed the established principle, binding on it from the High Court decisions in Veen (No 1) and Veen (No 2), that a sentence must not be inflated to achieve what amounts to preventive detention, even where an offender poses a genuine and significant risk to the community. Public protection is a legitimate sentencing consideration, but it cannot translate into a sentence exceeding what is proportionate to the offences committed.

Bell J substituted a starting point of 13 years' imprisonment for the attempted sexual intercourse offence (count 5). After applying a 20 percent discount for the utilitarian value of the guilty plea, the substituted sentence became 10 years and 3 months' imprisonment, with a non-parole period of 5 years and 3 months commencing 17 October 2005. The aggregate sentence, as restructured, became 12 years and 9 months' imprisonment with an effective non-parole period of 7 years and 9 months.

The Court dismissed the appeal in relation to all remaining 17 counts, confirming those sentences as appropriate.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in respect of count 5 only: sentence substituted comprising a non-parole period of 5 years and 3 months from 17 October 2005, with a balance of term of 5 years. The earliest date of eligibility for parole consideration is 16 January 2011.
  • Appeal dismissed and sentences confirmed in respect of counts 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18.

Key Takeaways

  • A sentence for child sexual offences must not be inflated to serve as preventive detention, even where an offender is assessed as posing a continuing danger to the community. This prohibition, established by the High Court in Veen (No 1) and Veen (No 2), remains binding on the Court of Criminal Appeal.
  • Where a sentencing judge identifies an offence as sitting at the mid-range of objective seriousness, a notional starting point that significantly exceeds what that characterisation warrants may indicate an impermissible preventive detention element has entered the reasoning.
  • A 20 percent discount for the utilitarian value of a guilty plea was applied in this case, bringing the substituted sentence for attempted sexual intercourse down from a 13-year starting point to 10 years and 3 months.
  • Public protection remains a legitimate and weighty sentencing consideration for offenders with prior sexual offences against children and a clinical assessment of ongoing risk. The Court confirmed that a substantial effective term can properly reflect that need without crossing into preventive detention.
  • Partial accumulation of sentences was upheld where an offence against a particular complainant was a wholly separate act of criminality committed within the same general period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Part 4 Division 1A (standard non-parole periods), s 44(1)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Veen v The Queen (No 1) (1979) 143 CLR 458
- Veen v The Queen (No 2) (1987) 164 CLR 465
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Simpson (2001) 53 NSWLR 704
- R v Daetz [2003] NSWCCA 266; 139 A Crim R 398
- R v BJW [2000] NSWCCA 60; 112 A Crim R 1
- R v McQueeney [2005] NSWCCA 168
- R v Soloman [2005] NSWCCA 158
- R v AGR (unreported, NSWCCA, 24 July 1998)
- R v Dent (unreported, NSWCCA, 14 March 1991)