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Court of Criminal Appeal 17 July 2020

WB v R

[2020] NSWCCA 159

Sexual offences
CRIMINAL LAW APPEALS SENTENCING HISTORICAL OFFENCES APPEAL AGAINST SENTENCE SEVERITY

Citation: WB v R [2020] NSWCCA 159
Court: Court of Criminal Appeal, NSW
Date: 17 July 2020
Judge(s): Bell P, Davies J, N Adams J

Background

The appellant pleaded guilty in the Campbelltown Local Court to four historical sexual offences against a male victim, committed between 1972 and 1974. The offences included attempted buggery and three counts of indecent assault on a male, all charged under provisions of the Crimes Act 1900 (NSW) that have since been repealed. The maximum penalty for each offence was five years' penal servitude.

At the time of the offending, the appellant was aged between 16 and 18 years, while the victim was aged between 11 and 12 years. The offending occurred across multiple incidents over roughly two years, with some incidents opportunistic and at least one involving deliberate planning to isolate the victim. The appellant was 63 years old at the time of sentencing in 2019, some 45 years after the offending occurred.

The District Court imposed an aggregate sentence of eight years' imprisonment with a non-parole period of five years and seven months. The appellant sought leave to appeal to the Court of Criminal Appeal, contending that the sentence was infected by several legal errors and was manifestly excessive.

  • Whether the sentencing judge erred by failing to properly take into account that the appellant was a "young person" under the Child Welfare Act 1939 (NSW) at the time of some or all of the offending, including in assessing the objective seriousness of each offence.
  • Whether the sentencing judge erred in assessing the objective seriousness of the four offences on a collective basis rather than individually.
  • Whether the sentencing judge erred in finding that the offending resulted in substantial injury to the victim.
  • Whether the aggregate sentence imposed was manifestly excessive.

Decision

The Court of Criminal Appeal allowed the appeal and substantially reduced the sentence. Davies J (with Bell P and N Adams J agreeing) identified error in the sentencing judge's approach to the appellant's age at the time of offending and in the assessment of objective seriousness.

A central issue was the operation of the Child Welfare Act 1939 (NSW), which applied at the time of the offending and provided a distinct sentencing regime for "young persons." The Court accepted that, while it could not be said one way or the other whether the offending would have been dealt with under that Act, the possibility had to be brought to account. Section 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW), which directs courts to have regard to sentencing patterns and practices at the time of the offence, applies to patterns and standards derived from judicial sentences, not to statutory regimes such as the Child Welfare Act. The importance of the 1939 Act was that it underscored that the appellant was a young person when the offences were committed, even though he was not sentenced until decades later.

The Court also found that each offence needed to be assessed individually for objective seriousness rather than collectively, and that the indicative sentences imposed below did not properly reflect the distinctions between the offences. The finding of substantial injury to the victim was also considered to have affected the overall sentencing outcome.

After reassessing the matter, the Court imposed indicative sentences ranging from nine months to one year and eight months for each offence, arriving at an aggregate sentence of three years' imprisonment with a non-parole period of two years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Judge Norton SC in the District Court on 1 August 2019 quashed.
  • In substitution, the appellant was sentenced to an aggregate term of imprisonment of three years commencing 31 July 2019 and expiring 30 July 2022, with a non-parole period of two years expiring 30 July 2021.

Key Takeaways

  • When sentencing for historical offences committed by a young person, the Child Welfare Act 1939 (NSW) remains a relevant consideration, even where it cannot be determined whether the offender would have been dealt with under that regime, because it informs the significance of the offender's age at the time.
  • Section 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) directs attention to patterns and standards of judicial sentencing at the time of the offence; it does not extend to alternative statutory sentencing regimes that were available at that time.
  • Objective seriousness in a multi-count sentencing exercise requires individual assessment of each offence rather than a collective evaluation across all charges.
  • The Court of Criminal Appeal reduced an eight-year aggregate sentence to three years after finding that the sentencing judge had failed to adequately account for the appellant's youth at the time of offending and had erred in the assessment of individual offences.
  • A gap of 45 years between historical offending and sentencing does not, of itself, displace the requirement to treat the offender's status as a young person at the time as a significant sentencing consideration.

Legislation and Cases Referenced

Legislation:
- Child Welfare Act 1939 (NSW), ss 4, 83
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW), ss 80, 81
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA

Cases:
- Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Jammeh [2004] NSWCCA 327
- R v Pickett [2004] NSWCCA 389
- R v Tuala [2015] NSWCCA 8; 248 A Crim R 502
- TC v R [2016] NSWCCA 3
- Zreika v R [2012] NSWCCA 44