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Court of Criminal Appeal 17 March 2017

Wilson v R

[2017] NSWCCA 41

Sexual offences
SENTENCE APPEAL INDECENT ASSAULT COMMITTED IN 1982 VICTIM EITHER 8 OR 9 YEARS OLD FIXING OF NON‑PAROLE PERIODS ERROR ESTABLISHED APPLICANT RESENTENCED.

Citation: Wilson v R [2017] NSWCCA 41
Court: Court of Criminal Appeal, New South Wales
Date: 17 March 2017
Judges: Hoeben CJ at CL; Garling J; Beech-Jones J

Background

The applicant, a man aged 77 at the time of sentencing, pleaded guilty in the District Court to one count of indecent assault committed between 1982 and 1983 against a child who was either seven or eight years old. The offending involved repeated sexual conduct over an extended period, with the applicant taking the victim to secluded areas of his home when his daughter was absent. A second, similar offence committed against the same victim in 1985, when she was either ten or eleven, was placed on a "Form 1" for the court to take into account on sentence. The applicant had prior convictions for indecent assault of children dating back to 1979.

On 15 September 2015, the District Court imposed a total sentence of 43 months imprisonment with a non-parole period of 25 months. The applicant sought leave to appeal, arguing error in the application of historical sentencing principles, particularly the approach to fixing the non-parole period.

The Court of Criminal Appeal heard the application on 16 March 2017 and made orders on that date, publishing its reasons shortly after.

  • Whether the sentencing judge applied the correct historical sentencing practice when fixing the non-parole period for an offence committed in 1982 to 1983
  • Whether a specific error arose from incorrect information given to the sentencing judge about the relationship between the parole period and the non-parole period under historical practice
  • What sentence was appropriate on resentencing, having regard to the gravity of the offending, the applicant's criminal history, age, health, and plea of guilty

Decision

The Court identified a specific sentencing error. The sentencing judge had been incorrectly advised that the historical practice was to fix the parole period at between one third and one half of the total sentence. In fact, the correct historical practice was to fix the non-parole period at between one third and one half of the total sentence. These are materially different propositions. A parole period of one third to one half of the total sentence produces a much longer non-parole period than a non-parole period of one third to one half. That error meant the judge applied a framework inconsistent with the prevailing sentencing practice at the time the offences were committed, and error was therefore established.

On resentencing, the Court assessed the offending as serious. The principal offence was committed against a very young child, was not isolated, and formed part of a persistent course of conduct by a recidivist offender. The sentencing judge's characterisation of the offence as a "serious example" under the relevant provision was accepted. The Court declined to treat the historical nature of the offending as significantly mitigating, rejecting the suggestion that offences committed against a very young child decades ago should necessarily be regarded as "stale".

Balancing those findings against the applicant's subjective circumstances, including his age, health conditions (cardiomyopathy, sleep apnoea, and the consequences of an amputation), the absence of further offending since 1985, and a ten percent discount for his plea, the Court fixed a head sentence of three years imprisonment. That represented half the maximum penalty applicable at the time of the offence, which the Court considered appropriate for serious offending by a recidivist with a complex subjective case. A non-parole period of 18 months and 2 days was set, representing approximately the upper end of the historically applicable range, that is, half the head sentence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court on 15 September 2015 set aside
  • In lieu thereof, the applicant sentenced to three years imprisonment commencing 15 September 2015 and expiring 14 September 2018, with a non-parole period of 18 months and 2 days commencing 15 September 2015 and expiring 16 March 2017
  • Applicant directed to be released on expiry of the non-parole period

Key Takeaways

  • Where a sentencing judge is incorrectly advised about historical sentencing practice for an offence committed at a particular time, that misinformation can constitute a material error justifying appellate intervention and resentencing.
  • The correct historical practice in New South Wales was to fix the non-parole period at between one third and one half of the total head sentence, not to fix the parole period within that range. The distinction is significant because the two approaches produce substantially different non-parole periods.
  • Under the principle established in cases such as Kentwell v The Queen and Bugmy v The Queen, an offender sentenced for a historical offence is entitled to the benefit of the sentencing practices that prevailed at the time the offence was committed, not current practices if they are more severe.
  • An offence committed against a very young child does not automatically qualify as a "stale crime" merely because it occurred decades ago; the Court of Criminal Appeal declined to apply significant mitigation on that basis alone.
  • Where the Court of Criminal Appeal directs an offender's release at the end of a non-parole period, that release constitutes a "parole order" under the Crimes (Administration of Sentences) Act 1999, making the offender subject to standard parole conditions and any additional conditions imposed by the Parole Board.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), former s 61E(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32(1), 50(1), 51(1)
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 3, 128(1)

Cases
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Bugmy v The Queen [1990] HCA 18; 169 CLR 525
- Griffiths v The Queen (1989) 167 CLR 372
- Betts v The Queen [2016] HCA 25
- AJB v Regina [2007] NSWCCA 51
- R v Blanco [1999] NSWCCA 121
- Regina v MJR [2002] NSWCCA 129; 54 NSWLR 368
- Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Henderson v R [2016] NSWCCA 8
- Denham v R [2016] NSWCCA 309
- MPB v R [2013] NSWCCA 213
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- CPW v R [2009] NSWCCA 105
- Bradbery v Regina [2008] NSWCCA 93
- Regina v Badanjak [2004] NSWCCA 395
- Regina v Fidow [2004] NSWCCA 172
- Regina v M A [2004] NSWCCA 92
- R v Smith (1987) 44 SASR 587