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Court of Criminal Appeal 28 June 2019

Wright v R

[2019] NSWCCA 134

Sexual offences
WHETHER SENTENCE MANIFESTLY EXCESSIVE NO MISAPPLICATION OF PRINCIPLE APPEAL DISMISSED

Citation: Wright v R [2019] NSWCCA 134
Court: NSW Court of Criminal Appeal
Date: 28 June 2019
Judges: Bathurst CJ, Price J, Ierace J

Background

The appellant was convicted at trial in the District Court of three sexual offences against the teenage daughter of his long-term partner. The first offence was aggravated sexual intercourse without consent (the complainant being 15 years old at the time), contrary to s 61J(1) of the Crimes Act 1900 (NSW). The second and third offences were aggravated indecent assaults on the complainant when she was 16, contrary to s 61M(1) of the same Act.

The offending occurred in the family home and formed part of a course of conduct, including grooming behaviour, that the sentencing judge found was linked to a period of discord in the appellant's relationship with the complainant's mother. The complainant's victim impact statement described lasting effects on her mental and physical health, the loss of trust in males, and her forced removal from the family home.

On 15 June 2017, the District Court imposed an aggregate sentence of 12 years imprisonment with a non-parole period of 9 years. The indicative sentences were 9 years (count 1), 2 years (count 2), and 4 years (count 3). The appellant sought leave to appeal on the grounds that the sentencing judge had misapplied the totality principle and that the sentence was manifestly excessive.

  • Whether the sentencing judge failed to properly apply the totality principle when imposing an aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the aggregate sentence of 12 years with a 9-year non-parole period was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed both grounds. On the totality issue, the Court found no misapplication of principle. The aggregate sentence, viewed against the indicative sentences, was notionally consistent with a significant degree of concurrency between counts 2 and 3, and some concurrency in turn with count 1. The Court identified no error in the way the sentencing judge had structured the sentence.

On manifest excess, the Court reaffirmed that intervention is only warranted where the sentence is so far outside the available range that some error must be inferred, or where the difference from comparable cases is such that a misapplication of principle is evident. The Court noted the difficulties in using mathematical analysis of indicative sentences to establish manifest excess, and cautioned that comparative cases require careful handling.

The Court accepted that the sentencing judge had expressly intended to impose a "stern" sentence. Acknowledging that it could not simply substitute its own view for that of the sentencing judge, the Court concluded that the aggregate sentence fell within the range of sentences available to reflect the criminality encompassed by the three offences.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence will not be disturbed simply because an appellate court might have exercised its discretion differently; the sentence must be unreasonable or plainly unjust before intervention is warranted.
  • A principal focus when assessing manifest excess in an aggregate sentence is whether the aggregate reflects the overall criminality involved, rather than whether it corresponds mechanically to the sum of indicative sentences.
  • Mathematical analysis of indicative sentences carries inherent difficulties as a method of establishing manifest excess in aggregate sentencing, and the Court expressly noted the need for a careful approach.
  • Comparative cases must be used with caution when arguing manifest excess; differences between sentences in other cases must be sufficient to suggest a misapplication of principle, not merely a different outcome.
  • Under ss 47 and 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the notional concurrency evident from the relationship between indicative and aggregate sentences is a relevant indicator of whether the totality principle has been properly applied.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 47, 54A

Cases:
- Lowndes v R (1999) 195 CLR 665; [1999] HCA 29
- JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Ngati v R [2018] NSWCCA 32
- AK v R [2016] NSWCCA 238
- Aloniu v R [2017] NSWCCA 74
- Enriquez v R [2012] NSWCCA 60
- FB v R; R v FB [2011] NSWCCA 217
- MLP v R [2014] NSWCCA 183
- R v Brown [2012] NSWCCA 199
- R v DAJ [2012] NSWCCA 143
- R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- R v Nykolyn [2012] NSWCCA 219
- R v Rae [2013] NSWCCA 9
- R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115
- RSW v R [2012] NSWCCA 13
- Simon v R [2013] NSWCCA 328
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
- Vandeventer v R [2013] NSWCCA 33