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Court of Criminal Appeal 3 March 2016

AB [Peter Wayne Graham Scott] v R (No 2)

[2016] NSWCCA 28

Sexual offencesDrugs
CRIMINAL LAW CONVICTION APPEAL PARTIALLY SUCCESSFUL NEED TO RE SENTENCE REDUCED AGGREGATE SENTENCE IMPOSED.

Citation: AB [Peter Wayne Graham Scott] v R (No 2) [2016] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 3 March 2016
Judge(s): Bathurst CJ, Hoeben CJ at CL, RS Hulme AJ

Background

The appellant, a former teacher, was convicted following three separate trials of 14 counts (subsequently reduced to 13) of sexual assault and supplying stupefying drugs to five young boys. The offences occurred between 1984 and 1986, during his time as their teacher. On 2 May 2014, the District Court imposed an aggregate sentence of 14 years' imprisonment with a non-parole period of 7 years and 6 months, commencing 13 March 2014.

In earlier proceedings (AB v R [2015] NSWCCA 315), the appellant appealed against four convictions relating to offences against one victim. The Court of Criminal Appeal dismissed three of those appeal grounds but allowed the appeal on one count, specifically a conviction for homosexual intercourse with a male aged 15 contrary to s 78K of the Crimes Act 1900. That count carried an indicative sentence of 3 years.

The quashing of that one conviction required the Court to re-sentence the appellant on the remaining 13 counts. This decision records the outcome of that re-sentencing exercise.

  • Whether the quashing of one conviction out of 14 should produce a genuine, rather than merely symbolic, reduction in the aggregate sentence.
  • What aggregate sentence was appropriate, having regard to the totality of the remaining offences, the sentencing judge's original findings, and the need to re-approach sentence afresh.

Decision

The Court accepted that the quashing of the conviction on count 6 of the first indictment should produce a genuine, not merely symbolic, reduction in the overall sentence. The offence in question was assessed as sitting in the mid-range of seriousness among the appellant's convictions, given that seven of the original 14 indicative sentences exceeded the 3-year indicative term attached to that count.

Hoeben CJ at CL noted several factors that bore on the re-sentencing exercise. The sentencing judge had found that the offences against two of the victims were not isolated incidents and were aggravated by substantial harm disclosed in victim impact statements. The appellant had no remorse or contrition, and his convictions followed contested trials. These findings remained undisturbed on appeal.

The Court also noted that the victim in the quashed count was older than the victims in the earlier counts on that indictment, and older relative to the other victims generally. The special circumstances finding made by the original sentencing judge was not challenged and was therefore carried forward into the re-sentencing.

Taking all of these matters into account and re-approaching sentence afresh, the Court reduced the aggregate non-parole period from 7 years and 6 months to 7 years, with a balance of term of 6 years, producing a total aggregate sentence of 13 years.

Orders Made

  • The sentence imposed by Huggett DCJ on 2 May 2014 is quashed.
  • In lieu thereof, the appellant is sentenced to imprisonment with an aggregate non-parole period of 7 years commencing 13 March 2014, with a balance of term of a further 6 years.

Key Takeaways

  • Where a conviction appeal is partially successful, the re-sentencing court must approach the exercise afresh rather than making a mechanical adjustment to the prior aggregate sentence.
  • A genuine, not merely symbolic, reduction in an aggregate sentence is required following the quashing of one count, even where significant concurrency was built into the original sentence.
  • The relative seriousness of the quashed count among all counts is a relevant consideration in calibrating the appropriate reduction to the aggregate term.
  • Undisturbed findings from the original sentencing, including aggravating factors, absence of remorse, and a special circumstances determination, carry through to the re-sentencing exercise.
  • In this case, quashing one mid-range count from a 14-count indictment produced a reduction in the non-parole period of 6 months and an overall reduction of 1 year in the aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): s 38, s 61E(1), s 61E(1)(a), s 78K, s 78N

Cases:
- AB v R [2015] NSWCCA 315 (the primary conviction appeal)