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Court of Criminal Appeal 9 March 2007

R v BWS

[2007] NSWCCA 59

Sexual offencesAssault & violence

Citation: R v BWS [2007] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 9 March 2007
Judge(s): Sully J (principal judgment); Bell J and Hoeben J (agreeing)

Background

The respondent, the uncle of the complainant, was convicted by a jury in the District Court at Gosford following a trial in late October and early November 2005. The three counts on the indictment all concerned the same complainant, who had lived with the respondent since she was eighteen months old. At the time of all three offences she was sixteen years of age.

The first two counts charged aggravated sexual assault under section 61J(1) of the Crimes Act 1900 (NSW), offences carrying a statutory maximum of 20 years' imprisonment and a standard non-parole period of 10 years. The third count charged assault occasioning actual bodily harm under section 59, which carries a statutory maximum of 5 years. The Crown led relationship evidence that the sexual abuse had commenced when the complainant was nine years old and had continued regularly until she left the household.

The sentencing judge in the District Court imposed three concurrent sentences. For each of the two aggravated sexual assault counts, the respondent received 10 years' imprisonment comprising a 6-year non-parole period and a 4-year balance of term. A fixed term of 4 months was imposed for the assault count. Because all sentences were concurrent, the total effective sentence was 10 years with a 6-year non-parole period. The Crown appealed, contending the sentences were manifestly inadequate.

  • Whether the sentences passed in the District Court were manifestly inadequate in light of the nature and circumstances of the offending.
  • Whether, applying the principles in Pearce v The Queen and R v Way, the relationship between the individual sentences and the overall sentencing structure was appropriate.
  • What weight, on re-sentence, should be given to the respondent's medical conditions and his circumstances of incarceration (including serving in protection).

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding the original sentences were so inadequate as to require distinct upward revision. Sully J held that when analysed against the frameworks established in Pearce and Way, the sentences could not stand. The gravity of the offending, involving repeated sexual abuse of a child by a trusted family member over many years, demanded a more substantial sentencing response than the District Court had imposed.

On re-sentence, the Court took into account additional evidence placed before it by affidavit. That evidence established that the respondent had ongoing and not insignificant medical problems, and that he was serving his sentence in protection after seeking that status himself to avoid attacks from other prisoners who knew the nature of his offences. Sully J accepted that these factors warranted some favourable adjustment to the ratio of the non-parole period to the balance of term, resulting in a slightly longer balance of term relative to what might otherwise have been imposed.

The Court structured the re-sentences so that Counts 1 and 2 ran partially cumulatively rather than wholly concurrently, reflecting the distinct nature of each offence. Each aggravated sexual assault count received a non-parole period of 6 years and 6 months with a balance of term of 3 years, with the sentences staggered to commence at different dates.

Orders Made

  • Crown appeal allowed.
  • Sentences passed in the District Court quashed.
  • Respondent re-sentenced as follows:
  • Count 3 (assault occasioning actual bodily harm): fixed term of 4 months, commencing 1 November 2005 and expiring 28 February 2006.
  • Count 1 (aggravated sexual assault): non-parole period of 6 years 6 months commencing 1 March 2006 and expiring 31 August 2012; balance of term of 3 years commencing 1 September 2012 and expiring 31 August 2015.
  • Count 2 (aggravated sexual assault): non-parole period of 6 years 6 months commencing 1 November 2006 and expiring 30 April 2013; balance of term of 3 years commencing 1 May 2013 and expiring 30 April 2016.

Key Takeaways

  • A sentencing structure that makes all sentences wholly concurrent for multiple serious and discrete sexual offences against the same victim may be vulnerable to Crown appeal as manifestly inadequate, particularly where Pearce and Way require proper attention to the overall sentence reflecting total criminality.
  • Under section 5D of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal may re-sentence a respondent on a Crown appeal and may receive additional evidence not before the original sentencing court.
  • Where a respondent on re-sentence establishes ongoing medical difficulties and particularly burdensome conditions of incarceration (such as serving in protection), these factors may justify some adjustment to the structure of the sentence, even if the overall sentence must increase.
  • The Court of Criminal Appeal confirmed that the standard non-parole period of 10 years for offences under section 61J(1) provides an important benchmark in assessing the adequacy of sentences for aggravated sexual assault.
  • Cumulative, rather than concurrent, structuring of sentences for distinct offences committed on separate occasions better reflects the separate criminality involved in each offence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 59, 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(1)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Musso [2002] NSWCCA 487
- R v Way (2004) 60 NSWLR 168