AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
22
Court of Criminal Appeal 27 July 2007

DBW v REGINA

[2007] NSWCCA 236

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE CONSIDERATION OF PLEA OF GUILTY

Citation: DBW v Regina [2007] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 27 July 2007
Judge(s): Spigelman CJ, Simpson J, Harrison J

Background

The appellant pleaded guilty in the District Court to multiple sexual assault offences committed against three infant children between November 2000 and October 2005. Two of the victims were his natural children; the third was a child he was babysitting. The offences came to light after the appellant's son was found engaging in inappropriate sexual conduct at school, which prompted a family friend to confront the appellant. He subsequently confessed fully and voluntarily attended a police station.

The sentencing judge, Maguire QC DCJ, imposed an effective non-parole period of three and a half years with an additional term of three years. The judge found the appellant had good prospects of rehabilitation and made a finding of special circumstances, resulting in a non-parole period representing 54 percent of the effective head sentence.

The appellant sought leave to appeal the sentence, not on the basis that it was manifestly excessive, but on three specific grounds relating to the sentencing judge's treatment of particular factors.

  • Whether the sentencing judge gave sufficient weight to the appellant's voluntary pre-discovery confession, a factor distinct from and additional to the utilitarian value of a guilty plea
  • Whether remarks made by the sentencing judge during defence submissions indicated pre-judgment of the weight to be given to the guilty plea
  • Whether the sentencing judge erred in his treatment of aggravating circumstances, specifically the alleged failure to identify which aggravating factors he had accepted and whether he improperly relied on the Crown's submission that the victims suffered substantial harm

Decision

On the first ground, the Court confirmed that a voluntary pre-discovery confession is a factor entitled to significant weight in sentencing, over and above the utilitarian value of a guilty plea. However, after reviewing the sentencing remarks as a whole, the Court found the judge had in fact taken this factor into account. The absence of explicit elaboration did not establish error, particularly where the sentence itself reflected the benefit the appellant received.

On the second ground, the appellant pointed to remarks made by the judge during submissions, arguing they demonstrated pre-judgment on the value of the guilty plea. The Court rejected this argument. Remarks made in the course of submissions are not, without more, evidence of pre-judgment; a sentencing judge is entitled to raise issues and test propositions during the hearing without those exchanges indicating a closed mind.

On the third ground, the appellant argued the sentencing judge failed to identify which aggravating circumstances he had accepted, and separately that the Court should infer the judge improperly adopted the Crown's submission on substantial harm. The Court declined to draw that inference. The Court also observed that, given the evolution in public and judicial understanding of the effects of child sexual abuse since 1990, a sentencing court would have been entitled to proceed on the basis that substantial emotional harm to the victims was a proper finding. An earlier decision casting doubt on the evidentiary foundation for such findings was held to be of no assistance in the current context.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A voluntary pre-discovery confession carries independent sentencing weight beyond the utilitarian value of a guilty plea, as confirmed by the Court of Criminal Appeal, but its recognition in sentencing remarks need not be exhaustively articulated provided the sentence reflects its consideration.
  • Remarks made by a sentencing judge during the course of submissions do not, without more, establish apprehended pre-judgment or actual error in the sentencing exercise.
  • The obligation on sentencing judges to give reasons for aggravating factors does not require the court to enumerate every submission it accepted; absence of explicit reference to a Crown submission does not warrant an inference that the submission was adopted.
  • Courts are entitled to proceed on the basis that sexual offending against very young children carries a substantial risk of causing emotional harm, without requiring specific psychological evidence to establish that harm in each case. Earlier authority casting doubt on this approach was treated as outdated.
  • In dismissing the appeal, the Court of Criminal Appeal emphasised that the overall sentence must be read as a whole when evaluating whether a particular factor received proper weight, rather than focusing on isolated passages in the sentencing remarks.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Evidence Act 1995 (NSW), s 4

Cases:
- R v Ellis (1986) 6 NSWLR 603
- R v Lewins [2007] NSWCCA 189
- R v Muldoon (unreported, NSWCCA, 13 December 1990)
- R v Thompson (2000) 49 NSWLR 383
- R v Wickham [2004] NSWCCA 193
- R v Wilson (2005) 62 NSWLR 346
- Ryan v The Queen (2001) 206 CLR 267