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7
Court of Criminal Appeal 5 April 2006

Regina v Dagwell

[2006] NSWCCA 98

Sexual offences
CRIMINAL LAW CROWN APPEAL SENTENCES MANIFESTLY INADEQUATE RESPONDENT RESENTENCED.

Citation: Regina v Dagwell [2006] NSWCCA 98
Court: New South Wales Court of Criminal Appeal
Date: 5 April 2006
Judge(s): Beazley JA, Adams J, Howie J

Background

The respondent, a 47-year-old man, pleaded guilty in the District Court to nine child sexual assault offences committed against a 13-year-old girl. The offences arose from contact initiated through an internet chat room in December 2003, which led to two in-person meetings in January and April 2004 during which the respondent committed a series of acts of indecent assault and sexual intercourse against the complainant.

At the sentencing hearing in September 2005, Judge Ellis imposed a total term of 21 months imprisonment with a minimum period of nine months to be served before release to parole. The Crown appealed, contending that the overall sentence was manifestly inadequate given the objective seriousness of the offences.

The Court of Criminal Appeal heard the Crown appeal in March 2006, with the respondent's release to parole imminent at that time.

  • Whether the sentences imposed by the District Court were manifestly inadequate in light of the objective seriousness of nine child sexual assault offences committed against a 13-year-old.
  • How the resentencing should be structured across nine counts covering two separate occasions, including the appropriate discount for a guilty plea and the application of special circumstances.
  • What weight to give to the respondent's proximity to parole release at the time of the appeal hearing.

Decision

The Court of Criminal Appeal accepted the Crown's submission that the original sentences were manifestly inadequate. The court found that the total effective sentence of 21 months with a nine-month non-parole period failed to reflect the objective gravity of the conduct, which involved multiple acts of sexual intercourse and indecent assault against a 13-year-old child across two separate occasions.

Howie J, with whom Beazley JA and Adams J agreed, resentenced the respondent on all nine counts. The revised sentences incorporated a 20 per cent discount for the guilty plea and a finding of special circumstances, for the same reasons accepted by the sentencing judge (other than any consideration relating to the respondent serving his sentence on protection). The restructured sentences were cascaded to reflect the two separate offending episodes.

The court acknowledged the need for some moderation in resentencing, both because this was a Crown appeal and because of the respondent's imminent release to parole. The overall effect of the new sentence represented a minimum period in custody of three years and six months and a total term of five years, after applying the plea discount.

Following the publication of judgment, the Court subsequently corrected a date inconsistency in the orders for counts 5 to 9, amending the expiry and commencement dates to reflect the sentences as originally pronounced.

Orders Made

  • Appeal allowed; all sentences imposed by Judge Ellis in the District Court were quashed.
  • Counts 1 and 2: non-parole period of 9 months from 31 August 2005, expiring 30 May 2006; balance of term of 3 months commencing 31 May 2006.
  • Count 3: non-parole period of 1 year 3 months from 31 August 2005, expiring 30 November 2006; balance of term of 9 months commencing 1 December 2006.
  • Count 4: non-parole period of 12 months from 31 May 2006, expiring 30 May 2007; balance of term of 9 months commencing 31 May 2007.
  • Counts 5, 6, 7 and 9: non-parole period of 1 year 8 months from 1 March 2006, expiring 31 October 2007; balance of term of 1 year 2 months commencing 1 November 2007.
  • Count 8: non-parole period of 1 year 11 months from 31 August 2006, expiring 30 June 2008; balance of term of 1 year 5 months commencing 1 July 2008.

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentences for multiple child sexual assault offences committed against a 13-year-old must reflect the objective seriousness of the conduct, and a total effective custodial period of nine months was insufficient to do so.
  • A 20 per cent discount for a guilty plea was maintained on resentencing, along with a finding of special circumstances, though the sentencing court's reliance on the respondent's protection status was not carried forward.
  • Where a Crown appeal is heard close to the respondent's scheduled parole release, the appellate court may take that proximity into account in structuring the new sentence, though this does not displace the obligation to impose an adequate sentence.
  • In dismissing the adequacy of the original sentences, the Court structured the resentenced terms to reflect two distinct offending episodes on separate dates, with non-parole periods cascaded accordingly.
  • Post-judgment amendments corrected a clerical inconsistency in the dates specified for certain counts, illustrating that an error in expressing the intended sentence can be corrected after publication without altering the substantive orders.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- R v Way (2004) 60 NSWLR 160
- R v SG [2003] NSWCCA 220
- Pearce v The Queen (1998) 194 CLR 610
- R v Durocher-Yvon (2003) 58 NSWLR 581
- R v Wall [2002] NSWCCA 42
- R v Baker [2000] NSWCCA 85
- R v Scognamiglio (1991) A Crim R 81
- R v Israil [2002] NSWCCA 255
- R v AJP (2004) 150 A Crim R 575
- R v Radich [1954] NZLR 86
- R v AEM Snr [2002] NSWCCA 58
- R v Montesinos (2002) 135 A Crim R 417