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Court of Criminal Appeal 23 April 2008

WOODS v R

[2008] NSWCCA 83

Also reported as 184 A Crim R 108
Sexual offences

Citation: Woods v R [2008] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 23 April 2008
Judge(s): Spigelman CJ, Hulme J, Latham J

Background

The appellant was originally charged with six offences arising from contact he had made with a 14-year-old complainant over the internet, leading to a meeting at which he sexually touched her and subsequently engaged in conduct intended to cause her to fear physical or mental harm. Following negotiations on the day of trial, the indictment was reduced to two charges: one of aggravated indecent assault and one of intimidation with intent to cause fear of physical or mental harm. The appellant pleaded guilty to both charges that afternoon.

The following morning, the appellant withdrew instructions from his legal team. He later applied to withdraw his guilty plea to the indecent assault charge, claiming the plea was the product of duress from his lawyers and did not genuinely reflect a consciousness of guilt. That application was refused by Marien DCJ on 29 November 2006.

The appellant then came before the Court of Criminal Appeal on two grounds: seeking leave to withdraw the guilty plea to the indecent assault charge, and contending that the 21-month sentence imposed by O'Connor DCJ on that charge was manifestly excessive.

  • Whether leave should be granted to withdraw the guilty plea to the aggravated indecent assault charge, on the basis that it did not reflect a genuine admission of guilt and was entered under duress
  • Whether the sentence of 21 months imprisonment (with a nine-month non-parole period) for the indecent assault offence was manifestly excessive

Decision

Withdrawal of plea: The Court rejected the application to withdraw the guilty plea. Hulme J, with whom Spigelman CJ and Latham J agreed, found that the evidence did not support the claim of duress. Evidence from the appellant's solicitor showed that plea negotiations had been ongoing for some weeks before the trial date, that the appellant had been given the opportunity to decline the offer, and that he ultimately decided to accept it of his own accord after a lunch adjournment. The matters subsequently raised by the appellant as casting doubt on the Crown case were characterised by the Court as potential cross-examination points, not evidence bearing on the genuineness of his admission of guilt.

Spigelman CJ added that it is not appropriate to treat criminal proceedings as a "forensic game." The test on an application to withdraw a plea focuses on whether the confession of guilt was genuine, not on whether the accused believes the Crown case against him is strong or weak. Nothing raised by the appellant undermined the integrity of the plea.

Manifest excess in sentence: The Court also declined to disturb the sentence. O'Connor DCJ had already found in the appellant's favour on several mitigating factors, including that the offending was below the midpoint of objective seriousness, that a 15 per cent discount applied for the plea, and that the appellant was of prior good character and unlikely to reoffend. Hulme J noted that the sentencing judge may even have been unduly generous on some of those matters.

The Court emphasised the seriousness of the offending, which was premeditated, involved grooming a child through the internet, persisted after the complainant indicated her unwillingness, and involved a substantial age difference. Quoting from R v Dagwell [2006] NSWCCA 98, the Court affirmed that internet-facilitated crimes against children attract condign punishment. The sentence imposed was not so far outside the available range as to be manifestly excessive.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The test on an application to withdraw a guilty plea centres on whether the plea genuinely reflected a confession of guilt, not on the accused's assessment of the strength of the Crown case or his prospects at trial.
  • Spigelman CJ confirmed that raising new material capable of assisting cross-examination of the complainant, identified only after a plea application was already before the court, does not go to the genuineness of an admission and is an inappropriate basis for seeking to withdraw a plea.
  • In dismissing the sentence appeal, the Court of Criminal Appeal reinforced that internet grooming and sexual offences against children are treated with serious concern by the criminal justice system and will attract substantial sentences.
  • A sentencing court's acceptance of multiple mitigating factors in a defendant's favour does not prevent a sentence from remaining appropriate, where the objective criminality is sufficiently serious.
  • No error was established in the refusal by Marien DCJ to permit withdrawal of the plea, and the sentence imposed by O'Connor DCJ fell within the acceptable range in the circumstances.

Legislation and Cases Referenced

Cases:
- R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472
- R v Dagwell [2006] NSWCCA 98

(No specific legislation was identified in the provided text of the judgment.)