Citation: Wray v Regina [2007] NSWCCA 162
Court: Court of Criminal Appeal, New South Wales
Date: 21 June 2007
Judge(s): McClellan CJ at CL, Hulme J, Hislop J
Background
The appellant was convicted of multiple sexual and violent offences and sentenced in the District Court by Bell DCJ. He appeared in these proceedings unrepresented, seeking leave to appeal against several of the sentences imposed.
A central issue arose from the appellant's continued denial of guilt for the offences. Because he denied the offences, the Department of Corrective Services determined he was ineligible to participate in sex offender treatment programs (known collectively as CUBIT, or Custody Based Intensive Treatment). Participation in such programs is treated by the Parole Authority as a prerequisite to release on parole. The practical consequence, as officers had informally told the appellant, was that he was likely to serve his full sentence.
The appellant argued this situation constituted a sentencing injustice warranting a reduction in the sentence imposed on count 8. He also raised issues of totality in the overall sentencing structure.
Legal Issues
- Whether a sentencing court should reduce a sentence to account for the practical consequence that an offender's denial of guilt will exclude him from prison rehabilitation programs, making parole unlikely and full-term imprisonment probable.
- Whether the sentencing structure overall complied with the totality principle, which requires that the combined effect of multiple sentences be proportionate to the overall criminality involved.
- Whether the sentence on count 8 was excessive or otherwise affected by error.
Decision
On the question of program exclusion and its effect on parole prospects, the Court held that a convicted offender's denial of guilt cannot justify a reduction in sentence. The foundation of any sentence is a finding of guilt proved beyond reasonable doubt. Adjusting the sentence downward to account for a deliberate election by the offender to deny guilt would be inconsistent with the sentencing task.
The Court also rejected the argument on practical grounds. Hislop J, with whom McClellan CJ at CL agreed, adopted the reasoning from Regina v Reyes [2005] NSWCCA 218: if denial of guilt attracted a sentencing discount, an offender could maintain that denial to obtain a shorter sentence and then, once sentenced, change position, participate in programs, and seek early release on the reduced term. No mechanism exists to reverse the discount in that scenario.
Hulme J agreed with the orders but wrote separately on what he called the "Significant Administrative Miscarriage" dimension. His Honour acknowledged that the practice of requiring program participation as a condition of parole, combined with the exclusion of denying offenders from those programs, was a real and documented phenomenon. Courts are entitled to take judicial notice of conditions that make imprisonment harder, and program exclusion can make custody harsher than for offenders generally. However, his Honour agreed the matter did not warrant a sentencing reduction in the circumstances before the Court.
On totality, the Court found that the sentence on count 8 was excessive when the overall structure was considered. That sentence was quashed and replaced with a shorter term, while the sentences on counts 3 to 7 were confirmed.
Orders Made
- Leave to appeal granted, with time extended to the date of filing.
- Appeal allowed in respect of count 8.
- The sentence on count 8 quashed and replaced with imprisonment for 6 years commencing 15 August 2002 and expiring 14 August 2008, with a non-parole period of 4 years and 3 months commencing 15 August 2002 and expiring 14 November 2006.
- Sentences on counts 3 to 7 confirmed.
Key Takeaways
- A convicted offender's election to deny guilt does not entitle him to a reduced sentence merely because that denial excludes him from rehabilitation programs and makes parole release unlikely.
- The Court of Criminal Appeal followed Regina v Reyes in holding that the risk of serving a full sentence due to program ineligibility is not a factor a sentencing court should discount against.
- Hulme J confirmed that courts are entitled to take judicial notice of administrative practices that affect the harshness of custody, including the Parole Authority's approach to program participation, but that recognition does not automatically translate to a sentencing reduction.
- Where denial of guilt is combined with exclusion from programs, the consequence falls within the realm of administrative decision-making rather than judicial sentencing discretion.
- The totality principle remains operative across multiple counts: even where individual sentences are not flawed in isolation, the overall structure must reflect proportionate punishment for the totality of the offending.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 11(1)
- Crimes Act 1900 (NSW), ss 59, 61, 66C, 474D
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 135(a) and (f), 135A(a) and (d)
- Crimes (Sentencing Procedure) Act (NSW), ss 44, 45
Cases:
- Regina v Reyes [2005] NSWCCA 218
- McNaughton v R (2006) 163 A Crim R 381
- Pearce v R (1998) 194 CLR 610
- Power v R (1974) 131 CLR 623
- York v R (2005) 79 ALJR 1919
- R v Sukkar [2006] NSWCCA 92
- R v Henry (1999) 46 NSWLR 346
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Perez-Vargas (1986) 8 NSWLR 559
- Galli v NSW State Parole Authority [2006] NSWSC 206
- Esho v Parole Board Authority of NSW [2006] NSWSC 304
- DCU v State Parole Authority of New South Wales [2006] NSWSC 526
- Lee v State Parole Authority of New South Wales [2006] NSWSC 1225
- Gulliford v New South Wales State Parole Authority [2006] NSWSC 1230
- Varney v Parole Board (WA) (2000) 23 WAR 187
- R v Cartwright (1989) 17 NSWLR 243
- R v AEM [2002] NSWCCA 58
- R v JRD [2007] NSWCCA 55