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Court of Criminal Appeal 8 May 2015

Gregory John Walsh v R

[2015] NSWCCA 83

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE AGGRAVATED SEXUAL ASSAULT WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Gregory John Walsh v R [2015] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 8 May 2015
Judge(s): Hoeben CJ at CL, Adams J, McCallum J

Background

The appellant was convicted by a jury of two counts of aggravated sexual assault and two counts of attempted aggravated sexual assault under the Crimes Act 1900 (NSW). All four offences were committed in the early hours of 1 January 1992, when the appellant entered a home through an open window and attacked a 57-year-old babysitter who was sleeping in the same room as the children in her care. The offences involved significant physical violence, causing the victim facial and bodily injuries.

The offences were solved through a DNA cold case match many years later, and the appellant was arrested in February 2011. He was convicted in December 2013 and maintained throughout proceedings that he was not responsible for the attack.

At sentencing, the judge imposed an aggregate non-parole period of four years with a balance of term of three years (total seven years), commencing 9 December 2013. The indicated individual sentences were seven years (non-parole five years and three months) for each sexual intercourse count, and fixed terms of three years for each attempted offence. The appellant sought leave to appeal on the basis that the aggregate sentence was incongruent with the indicated sentences and was manifestly excessive.

  • Whether an incongruity existed between the aggregate sentence imposed and the indicated individual sentences, such that the sentence was flawed in principle
  • Whether the aggregate sentence was manifestly excessive and outside the applicable sentencing range

Decision

On the incongruity ground, Adams J found that the aggregate non-parole period did exceed the individual indicated non-parole periods by one year and nine months. However, this was explained by the fact that accumulation was applied across four offences, not just one. Taking the sentencing exercise as a whole, Adams J was not persuaded that the extent of accumulation was inconsistent with the sentencing judge's stated approach of partial accumulation across all counts. The ground was dismissed.

On manifest excess, the court accepted that the sentencing judge had correctly identified and weighed the relevant aggravating features, including that the victim was attacked in circumstances analogous to being at home, that serious physical violence was inflicted, and that the victim suffered both physical and lasting psychological harm. The opportunistic (rather than planned) nature of the offence was treated as a mitigating factor. The court found no error in the overall sentencing exercise and dismissed the manifest excess ground.

Adams J did note one issue arising from the sentencing judge's reasoning. His Honour had observed that it was "no benefit" to the appellant that the attempted assaults failed because he had already ejaculated. Adams J clarified that the failure to complete penetration does reduce the objective seriousness of an attempted offence compared with a completed offence, even if it does not reduce the offender's moral culpability. McCallum J agreed with the orders but added a qualification: she declined to endorse any general rule that an attempted sexual assault is always materially less serious than a completed one, noting that in some circumstances the difference may be of little significance to the overall assessment of objective seriousness.

Adams J also flagged, without deciding, a separate concern: both completed offence counts carried the same circumstance of aggravation (actual bodily harm inflicted before the offence), which raised a question about potential double punishment. As this was not a ground of appeal and was not argued, the court declined to address it further.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence exceeding the individual indicated non-parole periods does not automatically constitute an incongruity warranting correction, provided the extent of accumulation across multiple counts is consistent with the sentencing judge's stated approach.
  • A failure to complete a sexual assault reduces the objective seriousness of an attempted offence relative to the completed offence, even where the attempt fails only because the offender has already ejaculated, although this does not diminish the offender's moral culpability.
  • McCallum J declined to accept as a general rule that an attempted sexual offence is always materially less serious than a completed one, noting that the significance of the difference depends on the circumstances of each case.
  • Where a sentencing judge applies the same circumstance of aggravation to multiple counts arising from the same conduct, a question of potential double punishment may arise, though the Court of Criminal Appeal left that issue open as it had not been argued.
  • No error was established in the sentencing judge's assessment of aggravating features, including the quasi-domestic setting, the serious physical violence, and the lasting psychological harm suffered by the victim.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J(1) (aggravated sexual assault), s 61P (attempts)

Cases
- Pearce v R [1998] HCA 57; 194 CLR 610
- R v Rothapfel (NSWCCA, 4 August 1992, unreported, Mahoney JA, McInerney and Studdert JJ)