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Court of Criminal Appeal 28 August 2015

R v Wood

[2015] NSWCCA 231

Sexual offences
CRIMINAL LAW CROWN APPEAL SENTENCING PAROLE PERIOD OF 12 MONTHS WHETHER HEAD SENTENCE AND/OR NON PAROLE PERIOD MANIFESTLY INADEQUATE

Citation: R v Wood [2015] NSWCCA 231
Court: Court of Criminal Appeal, New South Wales
Date: 28 August 2015
Judge(s): Gleeson JA, Johnson J, Garling J

Background

The respondent, a 62-year-old man, pleaded guilty to one count of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 10 years' imprisonment. The charge arose after a search warrant executed at his residence in December 2012 led to the seizure of computers and external hard drives containing an enormous volume of such material. Statistical sampling estimated he possessed approximately 49,433 images and 2,175 videos across six devices, spanning multiple categories of severity including penetrative sexual activity involving children and, in some files, sadism.

The respondent had a prior criminal history involving indecent assault offences against a male victim aged between eight and twelve years, committed between 1977 and 1982. In the District Court, Judge Williams SC sentenced him to two years and nine months' imprisonment with a non-parole period of 12 months.

The Crown appealed to the Court of Criminal Appeal on the ground that the sentence was manifestly inadequate. The appeal targeted both the head sentence and the non-parole period.

  • Whether the head sentence of two years and nine months' imprisonment was manifestly inadequate for the offence as charged.
  • Whether the non-parole period of 12 months was manifestly inadequate, having regard to the objective gravity of the offending and the need for general deterrence.
  • Whether, if the Court of Criminal Appeal intervened, residual discretion should be exercised to resentence the respondent.

Decision

The Court of Criminal Appeal unanimously upheld the Crown appeal, but only in part. The Court found the head sentence of two years and nine months was not "unreasonable or plainly unjust" and declined to disturb it. In reaching that conclusion, the Court took into account the respondent's subjective circumstances, including his age, health, and the conditions of his custody.

The non-parole period of 12 months was a different matter. Johnson J, with whom Gleeson JA and Garling J agreed, found it clearly failed to reflect the objective gravity of the offending and the heightened importance of general deterrence in sentencing for child pornography offences. The original non-parole period represented a very significant deviation from the statutory ratio of non-parole period to head sentence. The Court was satisfied that intervention was warranted.

In exercising its residual discretion to resentence, the Court considered both the evidence before the District Court and additional evidence placed before it on appeal, including material about the respondent's health and his experience in custody. A finding of special circumstances was made, allowing for a modest period of additional supervised conditional liberty. The Court fixed a new non-parole period of one year and ten months, representing approximately 66 per cent of the head sentence.

Orders Made

  • Crown appeal allowed.
  • Sentence imposed on 10 December 2014 set aside.
  • Respondent resentenced to imprisonment with a non-parole period of one year and ten months, commencing 10 December 2014 and expiring 9 October 2016.
  • Balance of term of eleven months commencing 10 October 2016 and expiring 9 September 2017.
  • Respondent to be released to parole on 10 October 2016.

Key Takeaways

  • A Crown appeal against sentence succeeds only where the sentence is unreasonable or plainly unjust; in this case, the head sentence cleared that threshold but the non-parole period did not.
  • Where a non-parole period deviates very significantly from the statutory ratio and fails to reflect the objective gravity of the offending, the Court of Criminal Appeal will intervene even where the head sentence is left undisturbed.
  • General deterrence carries heightened weight in sentencing for child abuse material offences, and a non-parole period must adequately reflect that principle alongside the seriousness of the conduct.
  • Subjective circumstances such as age, health, and conditions of custody are relevant to the head sentence but do not automatically translate into a substantially reduced non-parole period.
  • In resentencing on a Crown appeal, the Court of Criminal Appeal may take into account both the original sentencing material and additional evidence placed before it on appeal, including evidence of events occurring after the original sentence was imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW), s 289B

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- CMB v Attorney General (NSW) [2015] HCA 9; 89 ALJR 407
- Hejazi v R [2009] NSWCCA 282
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Maglis v R [2010] NSWCCA 247
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- PK v R [2012] NSWCCA 263
- R v De Leeuw [2015] NSWCCA 183
- R v GWM [2012] NSWCCA 240
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- R v Porte [2015] NSWCCA 174
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460