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Court of Criminal Appeal 20 August 2014

Wray v Regina

[2014] NSWCCA 166

Sexual offences
CRIMINAL APPEAL LEAVE TO APPEAL AGAINST SENTENCE AGGRAVATED INDECENT ASSAULT

Citation: Wray v Regina [2014] NSWCCA 166
Court: Court of Criminal Appeal, NSW
Date: 20 August 2014
Judges: Macfarlan JA, Adamson J, Bellew J

Background

The applicant was sentenced in the District Court at Parramatta in November 2013 to an aggregate term of 12 years' imprisonment with a non-parole period of nine years, following convictions for multiple counts of aggravated indecent assault against two child victims. The offending involved two girls aged under ten years, whom the applicant had befriended through their families. He had previously been placed on the Child Protection Register as a result of earlier offending.

The offending against the first victim included rubbing her genitalia, pressing his erect penis against her body, and photographing her in sexually suggestive poses. The offending against the second victim occurred on multiple occasions and included touching and kissing her genitalia, in some instances while her brother was nearby. Photographs seized from the applicant's devices included 15 images of the first victim that fell within category one of the child exploitation tracking scheme.

The applicant sought leave to appeal against his sentence on three grounds: that the sentencing judge failed to give appropriate weight to his subjective circumstances, that the judge gave undue weight to a finding of future dangerousness, and that the sentence was manifestly excessive.

  • Whether the sentencing judge gave appropriate weight to the applicant's subjective features, including age and personal circumstances
  • Whether the sentencing judge erred by placing undue weight on the finding that the applicant posed a future danger to the community
  • Whether the aggregate sentence of 12 years was manifestly excessive having regard to the principles of proportionality and totality
  • Whether the sentence was "crushing" within the meaning discussed in R v MAK; R v MSK

Decision

Adamson J (with whom Macfarlan JA agreed) found no error in the sentencing judge's treatment of the applicant's subjective features. The sentencing judge had acknowledged those features, including the applicant's age and personal history, but was not required to give them determinative weight in the face of serious, multiple offending against young children.

On the question of future dangerousness, the Court confirmed that a sentencing court is entitled to take dangerousness into account as one of many relevant factors, provided it does not use this to impose a sentence disproportionate to the objective gravity of the offending. Citing Veen (No. 2) and Markarian v The Queen, Adamson J found that the sentencing judge had balanced the competing purposes of sentencing appropriately, and that the degree of concurrence built into the aggregate sentence reflected proper application of the totality principle.

The Court rejected the submission that the sentence was manifestly excessive. The applicant's prior history of similar offending undermined any claim of rehabilitation, and the cessation of the offending was attributed to the vigilance of one victim's mother rather than to any restraint on the applicant's part. The various offences involved deliberate grooming, multiple victims, and a calculated exploitation of positions of trust.

Bellew J added observations on the "crushing" sentence argument. Referring to R v MAK; R v MSK, his Honour acknowledged that a very long total sentence can, in some cases, induce hopelessness and undermine rehabilitation prospects. However, his Honour noted the Court in that case had also recognised that offenders who commit multiple serious offences may not be entitled to the element of mercy that underlies that constraint. In the present circumstances, the applicant was not so entitled.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court is entitled to treat future dangerousness as a relevant consideration without that factor alone justifying a sentence disproportionate to the objective seriousness of the offending, consistent with Veen (No. 2).
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that subjective features, while required to be considered, need not be given significant weight where the objective gravity of multiple serious sexual offences against children is high.
  • The principle that a "crushing" sentence should sometimes be moderated in the interests of rehabilitation does not apply automatically to cases of multiple serious offending; the Court affirmed the qualification in R v MAK; R v MSK that some offenders are not entitled to that element of mercy.
  • Grooming conduct, abuse of trust, the involvement of multiple victims, and a prior history of similar offending are all factors that can properly increase the weight given to community protection over other sentencing objectives.
  • No error was established in the sentencing judge's application of totality, where an aggregate sentence was structured to allow for implicit concurrence between the individual indicative sentences.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), ss 61M(2), 91H(2)

Cases
- Veen (No. 2) [1998] HCA 14; 164 CLR 465
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575
- Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- R v McNamara [2004] NSWCCA 42