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Court of Criminal Appeal 22 March 2017

Woodward v R

[2017] NSWCCA 44

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE HISTORICAL CHILD SEXUAL ASSAULT RAPE AND BUGGERY APPEAL DISMISSED

Citation: Woodward v R [2017] NSWCCA 44
Court: NSW Court of Criminal Appeal
Date: 22 March 2017
Judges: Beazley P; R A Hulme J; Bellew J

Background

The applicant, a father, was convicted of five counts of rape and one count of buggery committed against his daughter in the early to mid-1970s when she was aged between 10 and 13. In October 2014, he was sentenced in the Wollongong District Court to an aggregate term of 18 years' imprisonment with a non-parole period of 9 years. He was aged 73 at the time of sentencing and had no prior or subsequent criminal convictions.

The sentencing judge also took into account, via a Form 1 document, additional offences of indecent assault and two counts of carnal knowledge by a father. These offences were accepted as representative of a sustained course of repetitive conduct. The applicant sought leave to appeal against the sentence on multiple grounds.

  • Whether the sentencing judge erred in the handling of the Form 1 document, including failure to comply with mandatory statutory requirements under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the correct maximum penalty was applied, given that the maximum penalty for rape had been reduced after the offences were committed but subsequently increased (to a lower level than the original maximum) before sentencing
  • Whether the sentencing judge failed to have regard to sentencing practices that applied at the time the offences were committed
  • Whether insufficient weight was given to the applicant's advanced age and ill-health
  • Whether the aggregate sentence was manifestly excessive

Decision

Form 1 procedural failures: The Court identified genuine deficiencies in how the Form 1 further offences were handled at sentencing. The Form 1 document failed to identify a specific "principal offence" to which the further offences were to be attached, as required by Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge also did not formally inquire of the applicant whether he admitted guilt in respect of the further offences, a mandatory step under s 33. The Court noted these failures, emphasised that such statutory formalities are not empty gestures, and observed that courts must be vigilant in complying with them. However, because the point had not been taken below and the errors did not affect the overall result, the Court did not disturb the sentence on this basis.

Maximum penalty and historical sentencing practices: The Court addressed the correct approach where a maximum penalty has fluctuated between the time of the offence and the time of sentencing. It held that the correct approach is to have regard to the maximum penalty at the time of the offence and at the time of sentence, not to some arbitrary intervening point. The Court also found no error in the sentencing judge's treatment of historical sentencing practices. Noting the nature of the offences, the Court observed that sentences imposed in the 1970s for a father raping a daughter in similar circumstances would not likely have differed materially from contemporary sentencing outcomes.

Age and ill-health: The Court accepted that the applicant's age of 73 and various health conditions were relevant mitigating factors, and acknowledged that the non-parole period might possibly have been reduced if somewhat more weight had been given to those factors. However, the Court was not persuaded that the primary judge's assessment fell outside the available exercise of sentencing discretion. The applicant's offending was ongoing, extremely serious, and involved significant aggravating features including his position as the complainant's father and the use of threats and manipulation.

Manifest excess: The Court held that the sentence was not manifestly excessive. The applicant had the benefit of early guilty pleas, otherwise good character, and low prospects of reoffending. General deterrence was of reduced significance given his age. However, these factors were weighed against the gravity and duration of the offending. The Court confirmed it is not sufficient to show that a different sentence might have been open; the applicant was required to establish the sentence was unreasonable or plainly unjust, and he did not.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Where a maximum penalty has fluctuated between the time of an offence and the time of sentencing, the Court of Criminal Appeal confirmed the correct approach is to have regard to the penalty at those two points only, not at arbitrary intermediate moments.
  • Strict compliance with the mandatory procedural requirements for Form 1 documents under the Crimes (Sentencing Procedure) Act 1999 is necessary, including formally identifying the principal offence and inquiring of the offender whether they admit guilt in respect of further offences.
  • In dismissing the appeal, the Court affirmed that establishing manifest excess requires more than showing a different sentence was available; the sentence must be shown to be unreasonable or plainly unjust, consistent with Markarian v The Queen and Lowndes v The Queen.
  • An offender's advanced age and ill-health are relevant sentencing considerations, but they do not operate to reduce a sentence automatically, particularly where the underlying offending is of sustained seriousness.
  • Sentencing for historical child sexual assault offences requires a court to consider both the maximum penalty and the sentencing practices that prevailed at the time of the offence, alongside those applicable at the time of sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 63, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, ss 19, 33, 44
- Crimes (Sexual Assault) Amendment Act 1981 (NSW)
- Crimes (Amendment) Act 1984 (NSW)
- Crimes (Child Assault) Amendment Act 1985 (NSW)
- Crimes (Personal and Family Violence) Amendment Act 1987 (NSW)
- Crimes (Amendment) Act 1989 (NSW)
- Interpretation Act 1987 (NSW), s 30
- Crimes Act 1914 (Cth), s 4F(2)

Cases:
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Elias v The Queen [2013] HCA 31; 248 CLR 483
- R v Felton [2002] NSWCCA 443; 135 A Crim R 328
- R v Brandt [2004] NSWCCA 3; 42 MVR 262
- Doumit v R [2011] NSWCCA 134
- House v The King [1936] HCA 40; 55 CLR 499
- R v Ronen [2006] NSWCCA 123; 161 A Crim R 300
- MPB v R [2013] NSWCCA 213
- R v EGC [2005] NSWCCA 392
- PH v R [2009] NSWCCA 161
- Magnuson v R [2013] NSWCCA 50