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10
Court of Criminal Appeal 29 April 2009

R v Woods

[2009] NSWCCA 55

Also reported as (2009) 195 A Crim R 173
Sexual offencesFirearms & weaponsPublic order & justice offences
CRIMINAL LAW CROWN APPEAL 23 CHARGES MAJORITY SEXUAL OFFENCES THREE YOUNG VICTIMS WHETHER SENTENCES MANIFESTLY INADEQUATE

Citation: R v Woods [2009] NSWCCA 55
Court: New South Wales Court of Criminal Appeal
Date: 29 April 2009
Judge(s): Giles JA; Latham J; Mathews AJ

Background

The respondent, a man aged between 23 and 25 at the time of the offending, was convicted in the District Court at Bourke on 14 charges after entering an early guilty plea. A further seven related charges were dealt with pursuant to section 167 of the Criminal Procedure Act 1986, and two further matters were taken into account under a Form 1. The charges involved 23 offences in total, the great majority being sexual offences against three young Aboriginal boys.

The respondent had been working as an Aboriginal Liaison Officer and coaching a youth football team in Bourke. He used food and pornographic films to encourage boys to visit his home, and committed offences against the three victims across two separate periods in 2005 and 2006 to 2007. The offending included four counts of sexual intercourse with a child under ten years, seven counts of sexual intercourse with a child between ten and fourteen years, two counts of attempted sexual intercourse, and a range of indecent assault and indecency offences. Firearms offences and offences involving threatening behaviour and resisting arrest were also charged.

All charges were based on admissions made by the respondent. The District Court sentenced him, and the Crown appealed on the ground that the sentences imposed were manifestly inadequate.

  • Whether the sentences imposed by the District Court were manifestly inadequate given the nature and extent of the offending.
  • How to properly structure the aggregate sentence across 23 charges, the majority being serious sexual offences against children, while accounting for the totality principle (the requirement that the overall sentence reflect the total criminality without becoming crushing).
  • What weight should be given to the respondent's early guilty plea, his admissions to authorities, and any assistance provided to police.
  • How to apply the standard non-parole period of 15 years that attaches to offences under section 66A of the Crimes Act 1900 (sexual intercourse with a child under ten) in the context of a complex multi-charge matter.

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding that the sentences imposed in the District Court were manifestly inadequate in light of the serious and sustained nature of the offending. The offences involved multiple victims, repeated episodes of sexual abuse, and a deliberate exploitation of the respondent's position of trust as a community liaison officer and football coach working with young Aboriginal boys.

The Court acknowledged the significant mitigating factors available to the respondent, including his early guilty plea, his admissions that formed the basis of all charges, and his cooperation with authorities. These factors were given appropriate weight but were insufficient to justify the original sentences, which did not adequately reflect the overall criminality involved across the 23 charges.

In resentencing, the Court applied the totality principle to structure individual sentences so that the aggregate reflected the full seriousness of the conduct without being disproportionately severe. Particular attention was given to the four most serious offences under section 66A, each carrying a maximum sentence of 25 years and a standard non-parole period of 15 years.

The Court imposed an aggregate non-parole period of six and a half years within an aggregate sentence of nine and a half years, with the respondent eligible for release to parole on 19 July 2013.

Orders Made

  • Crown appeal allowed.
  • Respondent resentenced.
  • On each of the two offences of sexual intercourse with a child under ten against ME (sequences 17 and 18): non-parole period of 2 years each, commencing 19 January 2009, expiring 18 January 2011, with a balance of term of 18 months, expiring 18 July 2012; sentences to be served concurrently.
  • On the offence of sexual intercourse with a child under ten against ME (sequence 3): non-parole period of 3 years commencing 19 January 2009, expiring 18 January 2012, with a balance of term of 18 months, expiring 18 July 2013.
  • On the offence of sexual intercourse with a child under ten against NB (sequence 23, taking into account Form 1 offences): non-parole period of 3 years commencing 19 December 2009, expiring 18 December 2012, with a balance of term of 18 months, expiring 18 June 2014.
  • On each offence of sexual intercourse with a child under ten against ME: non-parole period of 3 years commencing 19 July 2010, expiring 18 July 2013, with a balance of term of 3 years, expiring 18 July 2016.
  • Aggregate non-parole period: six and a half years within an aggregate sentence of nine and a half years; eligible for release to parole on 19 July 2013.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the volume of charges, the number of victims, and the respondent's position of trust as a community worker are all relevant aggravating factors in assessing whether a sentence for child sexual offences is manifestly inadequate.
  • An early guilty plea and admissions forming the entire evidentiary basis of the charges are significant mitigating factors, but they do not, of themselves, justify sentences that fail to reflect the overall gravity of sustained offending against multiple child victims.
  • Where charges are numerous and arise from distinct episodes involving different victims, the totality principle requires the sentencing court to structure cumulative and concurrent terms so the aggregate penalty is proportionate to the total criminality, rather than simply crushing.
  • Under section 66A of the Crimes Act 1900, the standard non-parole period of 15 years and the 25-year maximum sentence signal the particular seriousness with which the legislature treats sexual intercourse with a child under ten, and this must be reflected in the structure of sentences across related charges.
  • A Crown appeal against manifest inadequacy will succeed where the original sentence, viewed as a whole, does not adequately reflect the cumulative weight of the offending, even when proper allowances are made for all available mitigating factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 61N, 66A, 66C
- Criminal Procedure Act 1986 (NSW), s 167
- Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW), s 14(2)

Cases
- KJH v Regina [2006] NSWCCA 189
- MLP v R [2006] NSWCCA 271; 164 A Crim R 93
- Pearce v The Queen (1998) 194 CLR 610
- R v AJP [2004] NSWCCA 434
- R v Burchell (1987) 34 A Crim R 148
- R v Cage [2006] NSWCCA 304
- R v Ellis (1986) 6 NSWLR 603
- R v Gorman (2002) 137 A Crim R 326
- R v Kennedy [2000] NSWCCA 527
- R v MMK [2006] NSWCCA 272
- Ryan v The Queen (2001) 206 CLR 267