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Court of Criminal Appeal 9 September 2024

Wanstall v R

[2024] NSWCCA 167

Sexual offences
CURIAL PUNISHMENT

Citation: Wanstall v R [2024] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 9 September 2024
Judges: Stern JA, Cavanagh J, Sweeney J

Background

The appellant was a deputy principal of a Sydney high school who, in December 2020, used a classifieds website to solicit sexual activity from a person he believed to be a 14-year-old girl. The person was in fact an undercover police officer. Over several days, the appellant exchanged explicit messages, pressed for photographs of a sexual nature, negotiated payment for sexual acts, and ultimately drove to an agreed meeting point where he was arrested. He had $200 cash in his wallet at the time.

The appellant pleaded guilty in the District Court to using a carriage service to procure a person believed to be under 16 years of age for sexual activity, contrary to s 474.26(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is 15 years imprisonment. Judge Colefax SC sentenced him to 3 years and 7 months imprisonment with a non-parole period of 2 years, commencing 17 May 2023.

The appellant sought leave to appeal against that sentence on four grounds, including an erroneous adverse credit finding, a wrongly rejected claim of intoxication, a failure to account for extra-curial punishment, and manifest excess.

  • Whether the sentencing judge erred by inferring, without evidentiary foundation, that the appellant had given false instructions to his solicitor in earlier Local Court proceedings, and then using that inference to discount the appellant's credibility with expert witnesses.
  • Whether the sentencing judge erred in rejecting the appellant's claim that he was intoxicated at the time of the relevant communications.
  • Whether extensive adverse media coverage of the appellant's offending constituted extra-curial punishment that should have been taken into account in sentencing.
  • Whether the sentence was manifestly excessive, having regard to evidence of contrition, prior good character, and the absence of physical injury to any person.

Decision

Ground 1: Adverse credit finding

A media report tendered in support of the extra-curial punishment submission recorded that the appellant's solicitor had told the Local Court that police "distorted the truth" by not disclosing that the advertisement included the word "legal." The sentencing judge treated that statement as inconsistent with the agreed facts and concluded that the appellant must have given false instructions to his solicitor. The Crown conceded on appeal that this inference was drawn without evidentiary support, as other inferences were available and there was no evidence the solicitor's statement reflected the appellant's specific instructions. The Court of Criminal Appeal accepted that error was established, making resentencing necessary under the principle in Kentwell v The Queen (2014) 252 CLR 601.

Extra-curial punishment

The Court considered whether the extensive media reporting about the appellant, including coverage in nightly news bulletins and print media, amounted to extra-curial punishment warranting a sentencing reduction. Sweeney J, with whom Stern JA and Cavanagh J agreed, held that the appellant had not established the reporting rose to that level. Cavanagh J added that while the volume of coverage was undeniable, the psychiatric evidence did not establish that it had any particular impact on the appellant's physical or psychological wellbeing. Merely pointing to the impact that adverse publicity would ordinarily have does not suffice; the reporting in this case was a foreseeable consequence of both the nature of the offending and the principle of open justice.

Resentencing

On resentencing, Sweeney J assessed the offence as mid-range in seriousness, consistent with the approach of the original sentencing judge, and applied the same 10% discount for the late guilty plea. The Court gave weight to the appellant's positive rehabilitation indicators, including completion of programs in custody, voluntary numeracy tutoring for fellow inmates, no disciplinary breaches, and family support. Specific deterrence was treated as less significant given an assessment that reoffending in the same manner was unlikely. The resulting sentence was reduced from 3 years 7 months to 2 years 8 months imprisonment.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by the District Court on 26 July 2023 quashed.
  • The appellant resentenced to 2 years and 8 months imprisonment, dating from 17 May 2023 and expiring on 16 January 2026.
  • Release ordered on 16 November 2024 (after serving 18 months), upon entering a recognisance of $1,000 to be of good behaviour for 14 months, expiring 16 January 2026.
  • Conditions during the recognisance period: supervision by a probation officer; compliance with reasonable directions; no interstate or overseas travel without written permission; participation in treatment or rehabilitation programs as directed.

Key Takeaways

  • A sentencing judge cannot draw an adverse inference that an offender gave false instructions to their solicitor without evidentiary support for that specific conclusion; where other inferences remain available, the finding is erroneous.
  • Extra-curial punishment through adverse media coverage requires more than proof that coverage was extensive. The reporting must be shown to have had some impact on the offender's physical or psychological wellbeing before it will be treated as a mitigating factor at sentence.
  • Cavanagh J confirmed that pointing to the general effect adverse publicity "would have had" on an offender is insufficient; evidence of actual impact on the particular offender is necessary.
  • Media reporting as part of open justice is to be expected, particularly where the offending involves conduct that generates legitimate public concern, and its existence alone does not attract sentencing mitigation.
  • Positive rehabilitation efforts while in custody, including program completion and voluntary educational contributions to other inmates, remained relevant considerations on resentencing even where other mitigating factors were not accepted.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 474.26(1)
- Crimes Act 1914 (Cth), ss 20(1)(b), 20(1B)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Duncan v R [2012] NSWCCA 78
- Kenny v R [2010] NSWCCA 6
- R v Obeid (No 12) [2016] NSWSC 1815
- R v Nuttall; Ex parte Attorney-General (Qld) (2011) 209 A Crim R 538
- Einfeld v R [2010] NSWCCA 87
- FB v R; R v FB [2011] NSWCCA 217
- Greenwood v R [2014] NSWCCA 64
- Kearsley v R [2017] NSWCCA 28
- Khorami v R; R v Khorami [2021] NSWCCA 228
- R v Allpass (1993) 72 A Crim R 561
- R v Poynder [2007] NSWCCA 157
- R v Talia [2009] VSCA 260
- R v Wilhelm [2010] NSWSC 378
- R v Wran [2016] NSWSC 1015
- R v Zerafa [2013] NSWCCA 222
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21