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Court of Criminal Appeal 19 May 2017

R v Wright

[2017] NSWCCA 102

Sexual offences
SENTENCING CROWN APPEAL RESPONDENT AGED 42 YEAR OLD GIRL OTHER SEXUAL OFFENCES

Citation: R v Wright [2017] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 19 May 2017
Judges: Bathurst CJ, R A Hulme J, Beech-Jones J

Background

The respondent, a 42-year-old man, was sentenced in the District Court following guilty pleas to five offences involving the sexual abuse of a 14-year-old girl (referred to in the judgment as "MM"). The offences included four counts of sexual intercourse with a person aged between 14 and 16 years, and one count of procuring a child for unlawful sexual activity. Three further offences were taken into account on a Form 1, including two aggravated indecent assaults and one count of disseminating child abuse material.

The offending occurred over several months in late 2013 and into 2014. The respondent was a friend of MM's father and used that access to initiate and continue the relationship. The offending concluded when the respondent sent intimate images of MM to her mother's mobile phone following a falling out between them.

The District Court imposed an aggregate sentence of 3 years and 3 months imprisonment with a non-parole period of 1 year and 10 months. The Crown appealed on the single ground that the sentence was manifestly inadequate.

  • Whether the sentencing judge erred in characterising the objective seriousness of the offences as being "towards the lower end"
  • Whether the sentencing judge erred in making a finding of special circumstances justifying a longer-than-standard ratio of parole to non-parole period
  • Whether the aggregate sentence and non-parole period were manifestly inadequate
  • Whether, even if sentencing error was established, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene in a Crown appeal

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in assessing the objective seriousness of the offences as being towards the lower end of the range. The Court also identified error in the judge's approach to accumulation of sentences. However, the Court found no error in the judge's finding of special circumstances.

A critical issue emerged regarding sentencing statistics drawn from the Judicial Information Research System (JIRS). The sentencing judge had relied on statistics for "multiple offences" involving section 66C(3) of the Crimes Act, but the JIRS database uses "multiple offences" to mean any additional offence for which a sentence is imposed, not multiple contraventions of the same provision. The respondent was being sentenced for multiple contraventions of section 66C(3), which was a materially different situation. The Court found that the sentencing judge was significantly influenced by these misunderstood statistics.

Importantly, the Crown had the opportunity to correct the judge's misapprehension of the statistics at an early stage of the sentencing hearing, but instead reinforced the error. The Court noted the established duty on the Crown to assist a sentencing court to avoid appealable error, citing CMB v Attorney General for NSW. In circumstances where the Crown had contributed to the very error it was appealing, the Court declined to exercise its discretion to intervene. The appeal was dismissed.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Crown's residual discretion to intervene in a sentence appeal can be defeated where the Crown itself contributed to the sentencing error it later seeks to rely upon.
  • A duty rests on the Crown to assist a sentencing court to avoid appealable error; failure to discharge that duty carries consequences if the Crown subsequently appeals on the basis of that error.
  • Sentencing statistics from the JIRS database referencing "multiple offences" do not indicate multiple contraventions of a single offence provision; they refer to any additional offence attracting a separate sentence, which is a materially different category.
  • Establishing manifest inadequacy on a Crown appeal is not sufficient on its own to warrant intervention; the Crown must also negate any basis on which the Court's residual discretion not to interfere should be exercised.
  • In dismissing the appeal, the Court left undisturbed a sentence that it nonetheless characterised as manifestly inadequate, illustrating how the residual discretion in Crown appeals operates as a genuine and independent check on appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(3), 66EB(2), 91H(2), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32(1), 53A(2)(b)
- Criminal Appeal Act 1912 (NSW), s 5D
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- CMB v Attorney General for New South Wales [2015] HCA 9
- R v Hernando [2002] NSWCCA 489
- Regina v DH; Regina v AH [2014] NSWCCA 326
- House v The King (1936) 55 CLR 499
- Wong v R [2001] HCA 64
- Hili v The Queen [2010] HCA 45
- Cahyadi v R [2007] NSWCCA 1
- R v Mostyn [2004] NSWCCA 97
- R v Stoupe [2015] NSWCCA 175
- R v Nelson [2016] NSWCCA 130
- Hoskins v R [2016] NSWCCA 157
- Wakeling v R [2016] NSWCCA 33
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115