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Court of Criminal Appeal 7 December 2023

WW v R

[2023] NSWCCA 311

Sexual offences
CRIME SENTENCE APPEAL AGAINST SENTENCE HISTORICAL CHILD SEXUAL ASSAULTS TWO VICTIMS AGED ABOUT 6 TO 12 YEARS NO ERROR DISCLOSED

Citation: WW v R [2023] NSWCCA 311
Court: NSW Court of Criminal Appeal
Date: 7 December 2023
Judge(s): Kirk JA, Wilson J, Fagan J

Background

The applicant, whose identity is suppressed by statute, was the maternal uncle of two boys he sexually abused over approximately nine years, from 1977 to 1986. The offending began when the applicant was aged 17 or 18 and the older victim was about 6 years old; the younger victim was also around 6 when the abuse against him commenced. Both victims were subjected to repeated acts of indecent assault and other sexual offences throughout their childhoods.

The applicant pleaded guilty and was sentenced in the District Court in August 2022. The sentencing judge imposed an aggregate term of 10 years' imprisonment with a non-parole period of 6 years, together with a separate community corrections order for the first offence in time. The offences were committed contrary to provisions of the Crimes Act 1900 (NSW) that have since been repealed.

The applicant sought leave to appeal against sentence on five grounds, broadly contending that the sentencing judge had given insufficient weight to his youth at the time of offending, his mental illness, his claimed history of childhood sexual abuse, and the lengthy delay between the offending and prosecution.

  • Whether the sentencing judge gave adequate weight to the applicant's youth at the time of offending, as relevant to moral culpability and the weight afforded to retribution
  • Whether the sentencing judge failed to take into account the applicant's mental illness (reactive depression developed following the prosecution)
  • Whether the applicant's claimed childhood sexual abuse reduced his moral culpability for the offending
  • Whether general deterrence should have been afforded lesser weight, having regard to the applicant's history of abuse, mental illness, youth at time of offending, and delay
  • Whether specific deterrence should have been afforded lesser weight, given the delay, the applicant's voluntary cessation of offending, and his contrition
  • Whether grounds framed as complaints about the weight given to particular sentencing factors are proper grounds of appeal in this Court

Decision

Wilson J (with whom Kirk JA and Fagan J agreed) identified a threshold problem with three of the five grounds. Grounds 1, 4, and 5 were not framed as complaints that the sentencing judge had failed to consider a required factor; rather, they complained that insufficient weight had been given to particular features. The Court confirmed that merely asserting a factor was given inadequate weight is not a proper ground of appeal against sentence. The applicable principle, drawn from House v The King and endorsed in Markarian v The Queen, requires an appellant to identify specific error, or to establish that the result is unreasonable or plainly unjust. The applicant did not plead manifest excess, and the Court found those three grounds could only legitimately have been advanced on that basis.

On ground 2, the Court found that the applicant's reactive depression, which arose as a consequence of his prosecution rather than pre-existing it, was a mitigating factor of limited weight. The sentencing judge had in fact acknowledged the applicant's mental health condition, and no error in its treatment was established.

On ground 3, the Court accepted that a history of childhood sexual abuse can, in principle, bear on moral culpability. However, the applicant's evidence on this point was unsatisfactory: it rested largely on his own account to a psychologist, was not established on the balance of probabilities, and was inconsistent in some respects. The sentencing judge was not satisfied the claimed abuse had been proved, and the Court of Criminal Appeal found no error in that conclusion.

The Court noted that the sentencing judge had demonstrably ameliorated the sentence to account for delay, rehabilitation, good prospects, remorse, ill health, and the guilty pleas. The sentence was not regarded as unreasonable or unjust given the gravity of the prolonged and destructive abuse inflicted on two children who should have been able to look to the applicant for protection. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A ground of appeal against sentence that complains only of the weight given to a particular factor, without identifying specific error or pleading manifest excess, falls outside the proper scope of appellate review, consistent with the principles in House v The King and Markarian v The Queen.
  • Reactive depression developed as a consequence of prosecution, rather than a pre-existing condition, carries limited mitigating weight in sentencing; the Court of Criminal Appeal confirmed the sentencing judge's approach on this point was not erroneous.
  • Where an applicant's claimed history of childhood sexual abuse rests primarily on self-report and is not established on the balance of probabilities, a sentencing court is not required to treat it as reducing moral culpability.
  • The Court of Criminal Appeal confirmed that voluntary cessation of offending may be a relevant mitigating consideration, but noted that the evidence here did not support a finding that the applicant had voluntarily stopped. The offending against the older victim ended when the victim himself told the applicant to stop; evidence about how the abuse of the younger victim ended was unsatisfactory.
  • In dismissing the appeal, the Court reiterated that sentencing courts have primacy in weighing individual factors, and counsel should ensure grounds of appeal are properly pleaded in accordance with established principle before inviting the appellate court to second-guess the weight assigned to any feature.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 78K, 79, 81, 81A, 578A
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 15A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 33, 44(2)

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Ahmad v R [2021] NSWCCA 30
- RP v The Queen (2016) 259 CLR 641; [2016] HCA 53
- Aslan v R [2014] NSWCCA 114
- Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hillsley v R [2013] NSWCCA 78
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- Magnuson v R [2013] NSWCCA 50
- R v ABS [2005] NSWCCA 255
- R v Baker [2000] NSWCCA 85
- R v GDP (1991) 53 A Crim R 112
- R v Tanudjaja [2002] NSWCCA 467
- Dousha v R [2008] NSWCCA 263