AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 31 October 2019

WG v R

[2019] NSWCCA 263

Sexual offences
CRIMINAL LAW APPEAL SENTENCE MEDICAL CONDITIONS LOSS OF EMPLOYMENT PROTECTIVE CUSTODY

Citation: WG v R [2019] NSWCCA 263
Court: NSW Court of Criminal Appeal
Date: 31 October 2019
Judge(s): Hoeben CJ at CL, Walton J, Price J

Background

The applicant was sentenced in the District Court at Coffs Harbour in November 2017 for 11 sexual offences committed between 1996 and 2000 against the three daughters of his then partner, who were aged between 10 and 16 at the time. The offences included aggravated indecent assault and an aggravated act of indecency. A further nine offences of aggravated indecent assault were taken into account on Form 1 documents (a mechanism allowing additional related offences to be considered at sentencing without separate conviction).

The sentencing judge imposed an aggregate sentence of 5 years and 7 months imprisonment, with a non-parole period of 3 years and 6 months. A 25% discount applied for the utilitarian value of early guilty pleas, and special circumstances were found, resulting in a non-parole period representing approximately 62.6% of the head sentence (below the usual statutory ratio).

The applicant, self-represented, sought leave to appeal out of time. The Crown did not oppose the grant of leave to extend time, and the Court allowed the applicant's affidavit to be read in the proceedings.

  • Whether the sentencing judge failed to adequately account for the applicant's thyroid condition, which he argued explained poor memory during questioning rather than evasiveness.
  • Whether the loss of a 40-year career was properly considered as a mitigating factor at sentencing.
  • Whether the need to serve time in protective custody warranted a reduction in sentence.
  • Whether the applicant's post-sentencing conduct, rehabilitation prospects, and good behaviour in custody provided any additional basis to reduce the non-parole period.

Decision

The Court granted leave to appeal but dismissed all three grounds as being without merit.

On the thyroid condition, the Court found that the sentencing judge had expressly taken the applicant's medical conditions into account. The argument that thyroid disease explained poor memory during questioning did not establish any error in the sentencing exercise.

On career loss, the Court found that the sentencing judge had also addressed this factor. The loss of long-term employment is a recognised consequence that courts may consider, but no error was identified in how the judge weighed it here.

On protective custody, the Court confirmed the established principle that protective custody cannot be assumed to be more onerous than other forms of custody, citing Miller v R [2015] NSWCCA 86. The applicant's affidavit described verbal abuse and physical threats, and he argued that being filmed by a complainant during sentencing would necessitate ongoing protective custody. The Court held the sentencing judge did not err in declining to treat protective custody as a mitigating factor in these circumstances. The applicant's further submission about good behaviour and rehabilitation prospects was rejected on the basis that no properly framed ground of appeal supported that claim for relief.

Orders Made

  • Leave granted to bring the appeal out of time
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge does not err by declining to treat protective custody as a mitigating factor where there is no proper basis to assume it is more onerous than ordinary custody, consistent with the principle confirmed in Miller v R [2015] NSWCCA 86.
  • Where a sentencing judge has expressly considered a medical condition and career loss in the sentencing remarks, an applicant cannot simply reassert those factors on appeal without identifying a specific error in the judge's reasoning.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a submission about good behaviour and rehabilitation prospects in custody does not, by itself, constitute a ground of appeal capable of grounding a reduction in the non-parole period.
  • The Court may grant leave where no objection is taken and an affidavit has been read, while still dismissing all grounds as without merit: leave to appeal and success on appeal are distinct outcomes.
  • Aggregate sentences with special circumstances (varying the statutory ratio between head sentence and non-parole period) reflect the sentencing court's overall assessment; that finding is not easily displaced without demonstrating specific error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61O(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Miller v R [2015] NSWCCA 86
- Greenwood v R [2014] NSWCCA 64
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44