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Court of Criminal Appeal 29 March 2006

NWL v Regina

[2006] NSWCCA 67

Sexual offences
CRIMINAL LAW CONVICTION APPEAL AGGRAVATED INDECENT ASSAULT WHETHER THE VERDICTS WERE UNREASONABLE SENTENCE WHETHER EXCESSIVE

Citation: NWL v Regina [2006] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 29 March 2006
Judge(s): James J, Buddin J, Hall J

Background

The appellant was a professional golfer who had been convicted at trial in the District Court before Phelan DCJ of nine counts of aggravated indecent assault and three counts of inciting a person above the age of sixteen years to commit an act of indecency. The complainant, a male born in 1978, had been introduced to golf by the appellant from around the age of ten and had participated in junior clinics the appellant ran at a local golf course.

The Crown alleged the offences occurred between October 1993 and December 1996. The complainant's evidence described a pattern of conduct during which the appellant used his position of authority and trust, including funding interstate trips to play golf, to carry out sexual acts against the complainant. The complainant described feeling uncomfortable, confused, and in some instances frozen during the assaults.

At sentencing, Phelan DCJ imposed a total effective sentence of six years' imprisonment with a non-parole period of four years. The appellant challenged both his convictions and the sentences on appeal.

  • Whether the verdict on count 8 (inciting a person above the age of sixteen years to commit an act of indecency) was unreasonable or unsupported by the evidence
  • Whether the remaining convictions were unreasonable having regard to the evidence and directions on the issue of consent
  • Whether the sentences imposed were manifestly excessive
  • Whether the sentencing judge failed to apply section 44 of the Crimes (Sentencing Procedure) Act as it stood at the time the offences were committed
  • Whether the sentencing judge failed to give proper effect to a finding of special circumstances

Decision

The Court of Criminal Appeal allowed the conviction appeal on count 8 only. The court found that the conviction on that count could not stand, and entered a verdict of acquittal. The remaining eight conviction grounds were dismissed. The court was satisfied that the verdicts on the other counts were not unreasonable, and that the evidence and directions on consent supported those outcomes.

On sentence, the court granted leave to appeal. It found that the sentencing judge had erred by failing to apply section 44 of the Crimes (Sentencing Procedure) Act in the form it took at the time the offences were committed. This provision governs the relationship between the non-parole period and the balance of term of a sentence. The error affected the sentences on counts 2 through 7, 9 and 11, and required those sentences to be quashed and restructured to comply with the correct legislative regime.

Despite that structural error, the court found the sentences were not manifestly excessive overall. The objective seriousness of the offending was significant: it involved repeated sexual abuse across several years, exploitation of a position of trust and authority, and serious harm to the complainant as reflected in both his evidence and a Victim Impact Statement. The court acknowledged the appellant's subjective features, including his prior good character, no previous criminal record, the absence of evidence of similar conduct with others, and the serious extra-curial consequences he had already suffered, including the loss of his professional career.

Orders Made

  • Conviction appeal on count 8 allowed; conviction and sentence on count 8 quashed; verdict of acquittal entered on count 8
  • Conviction appeal otherwise dismissed
  • Leave to appeal against sentence granted
  • Sentences on counts 2 to 7, 9 and 11 quashed solely for the purpose of restructuring them to comply with section 44 of the Crimes (Sentencing Procedure) Act as in force at the time of the offences; each of those counts resentenced to five years' imprisonment with a non-parole period of three years commencing 1 November 2005
  • Sentence appeal otherwise dismissed

Key Takeaways

  • A sentence may need to be quashed and restructured on appeal even where it is not manifestly excessive, if the sentencing judge applied the wrong version of sentencing legislation. Here, the failure to apply section 44 of the Crimes (Sentencing Procedure) Act as it stood at the time of the offences required correction.
  • Where convictions rest on multiple counts, an unreasonable verdict finding on one count does not necessarily infect the remaining verdicts. The Court of Criminal Appeal upheld eleven of the twelve convictions after examining the evidence and directions independently.
  • Acquittal on a count does not automatically lead to any reduction in the overall sentence structure where the resentenced counts carry sufficient cumulative weight.
  • Objective seriousness, including the exploitation of a position of trust and the lasting harm to the victim, remained central to the sentencing assessment even where the offender had no prior criminal history and had suffered significant collateral consequences from the offending.
  • Under the applicable version of section 44 of the Crimes (Sentencing Procedure) Act, the ratio between the non-parole period and the balance of term must satisfy defined requirements, and sentencing courts are bound to apply the version of that provision in force at the time the offences were committed.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act (NSW), particularly section 44
- Criminal Appeal Rules

Cases
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- R v Bonora (1994) 35 NSWLR 74
- R v Cramp [2004] NSWCCA 264
- R v Habib [2005] NSWCCA 223