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12
Court of Criminal Appeal 2 May 2018

GW v R

[2018] NSWCCA 79

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: GW v R [2018] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 2 May 2018
Judges: Hoeben CJ at CL, Fullerton J, Davies J

Background

The applicant pleaded guilty in the Local Court to 29 offences involving the sexual abuse of a child, SK, spanning a period of several years. The offences included aggravated sexual intercourse with a child under 16, aggravated indecent assault, using a child for pornographic purposes, and possession of child abuse material. A further 26 offences were taken into account on a Form 1 (a procedural mechanism allowing additional offences to be considered at sentencing without conviction).

The sentencing judge in the District Court imposed an aggregate term of 18 years' imprisonment with a non-parole period of 13 years and 6 months, with the earliest possible release date being October 2029. Each indicative sentence reflected a 25 per cent discount for the utilitarian value of the guilty pleas.

The applicant sought leave to appeal on the sole ground that the aggregate sentence was manifestly excessive.

  • Whether the aggregate sentence of 18 years' imprisonment was manifestly excessive in all the circumstances
  • Whether the sentencing judge properly applied the totality principle when imposing an aggregate sentence across 55 offences (29 charged plus 26 on the Form 1)
  • Whether the applicant's subjective circumstances warranted greater mitigation

Decision

Fullerton J (with Hoeben CJ at CL and Davies J agreeing) found no error in the sentencing judge's approach. The indicative sentences for each offence were considered appropriate having regard to the objective seriousness of the individual offences, and the 25 per cent discount for guilty pleas was correctly applied across the board.

The Court found that the applicant's subjective circumstances carried little or no mitigating weight, while specific and general deterrence featured prominently as sentencing considerations. The applicant had a prior record that disentitled him to leniency, and there were no equivalent mitigating factors of the kind identified in comparable cases.

On the totality principle, the Court was satisfied that the sentencing judge properly moderated the aggregate sentence to avoid a crushing outcome from graduated accumulation, while also recognising the need to maintain public confidence in the administration of justice. This balance required avoiding any impression that multiple offending effectively attracts a sentencing discount.

The Court also addressed the applicant's reliance on comparison cases, reaffirming the settled principle that a search for and comparison with sentences in other cases is rarely helpful and contrary to authority. The aggregate sentence, while stern, was not shown to be unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • The appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence of 18 years for 29 serious child sexual abuse offences, with a further 26 offences on a Form 1, was not manifestly excessive.
  • The totality principle requires a sentencing court to moderate an aggregate sentence that would otherwise result from graduated accumulation, but that moderation must be balanced against maintaining public confidence in the administration of justice and avoiding any appearance that multiple offending generates a discount.
  • A 25 per cent reduction in each indicative sentence to reflect the utilitarian value of early guilty pleas was upheld as an appropriate and consistent method of discounting across a large number of offences.
  • Comparing sentences imposed in other cases is rarely a reliable basis for establishing manifest excess, and is contrary to settled appellate authority in New South Wales.
  • Where an offender's subjective circumstances carry little or no mitigating weight and the need for specific and general deterrence is prominent, those factors together can properly support a stern aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 61M(2), 91G(1)(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- DG v R [2017] NSWCCA 139
- DV v R [2017] NSWCCA 276
- Faehringer v R [2017] NSWCCA 248
- Hughes v R [2018] NSWCCA 2
- JL v R [2014] NSWCCA 130
- Krivosic v R [2017] NSWCCA 167
- Obeid v R [2017] NSWCCA 221
- Vandeventer v R [2013] NSWCCA 33