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Court of Criminal Appeal 18 October 2024

Woods v R

[2024] NSWCCA 186

Sexual offencesPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICATION FOR LEAVE TO APPEAL SELF REPRESENTED

Citation: Woods v R [2024] NSWCCA 186
Court: Court of Criminal Appeal, New South Wales
Date: 18 October 2024
Judges: Kirk JA; Campbell J (principal judgment); N Adams J

Background

The applicant pleaded guilty in the District Court to three offences: one State offence of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW), and two Commonwealth offences of using a carriage service to access and possess child abuse material. Because the applicant had a prior conviction for child abuse offences, a mandatory minimum head sentence of four years applied to each Commonwealth offence.

The sentencing judge imposed 12 months' imprisonment for the State offence, backdated to the date of the applicant's arrest so that it was treated as already served on remand. The two Commonwealth offences were dealt with as an aggregate sentence of four years, wholly accumulated on the State sentence. The total effective sentence was five years, with a non-parole period of three years and six months.

The applicant, self-represented, sought to appeal against the sentence on two grounds: that the Commonwealth and State sentences should have been ordered to run concurrently rather than consecutively, and that the sentencing judge had failed to apply the principles from R v Fernando and Bugmy v The Queen regarding the mitigatory effect of childhood trauma and resulting disadvantage.

  • Whether leave to appeal should be granted out of time under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), given the applicant was self-represented and his notice had been filed late.
  • Whether the sentencing judge erred by wholly accumulating the Commonwealth aggregate sentence on the State sentence, rather than importing a degree of concurrency.
  • Whether the sentencing judge erred by failing to expressly refer to R v Fernando and Bugmy v The Queen, and whether that omission indicated a failure to give proper weight to the applicant's subjective mitigatory circumstances.

Decision

On leave to appeal: Self-representation is not a privilege but a disadvantage, and leave to appeal is not ordinarily granted simply because an applicant is unrepresented. However, the Court accepted that the applicant's notice of intention to appeal had expired while he still had limited legal representation, and that he had been unaware no application had been made to preserve his position. On that basis, leave was granted.

On accumulation of sentences: The Court found no error in the sentencing judge's decision to wholly accumulate the Commonwealth aggregate sentence on the State sentence. There is no obligation to import concurrency between State and Commonwealth sentences imposed at the same sitting. The Court confirmed that the State offence (failing to comply with reporting obligations) involved distinct criminality from the Commonwealth offences, and that full accumulation was an appropriate and available approach. The sentencing judge had followed the relevant guidance from DPP (Vic) v Swingler and DPP (Cth) v Beattie.

On Fernando and Bugmy: The Court found that the sentencing judge had, in substance, correctly applied the principles from those authorities even without citing them. His Honour had expressly considered the applicant's childhood trauma and mental health conditions, finding that those matters reduced his moral culpability for each offence. Neither the applicant nor the Crown had cited those cases in submissions, and an express reference was not required in those circumstances. The Court also noted that the sternness of the overall sentence reflected the Commonwealth Parliament's deliberate intention, through the 2020 amending legislation, to increase sentences for child sex offences, particularly for repeat offenders.

Orders Made

  • Leave granted to make the application for leave to appeal under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Self-representation alone does not ordinarily justify a grant of leave to appeal out of time, but leave may be granted where an applicant was unaware that legal representatives had failed to preserve the right of appeal before the expiry of the relevant period.
  • No obligation exists on a sentencing judge to import a degree of concurrency between State and Commonwealth sentences imposed at the same sitting, particularly where the offences reflect distinct criminality.
  • Where a sentencing offence involves failure to comply with child protection reporting obligations, the Court of Criminal Appeal confirmed that the criminality is distinct from associated child abuse material offences, making full accumulation an available and appropriate sentencing approach.
  • Failing to cite Fernando and Bugmy does not constitute error where those cases were not raised in submissions and the sentencing judge's reasons demonstrate that the relevant principles were in fact applied.
  • Under the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), sentences for Commonwealth child sex offences, especially for repeat offenders, are intended to be stern, and that legislative purpose forms part of the sentencing framework.

Legislation and Cases Referenced

Legislation:
- Child Protection (Offenders Registration) Act 2000 (NSW), ss 3A, 17
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D
- Crimes Act 1914 (Cth), ss 16A, 16AAB, 16AAC, 19, 19AJ, 19AV
- Criminal Code (Cth), ss 474.22, 474.22A
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases:
- Bisiker v R [2022] NSWCCA 110
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Director of Public Prosecutions (Vic) v Swingler [2017] VSCA 305
- Gallo v Dawson [1990] HCA 30
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Fernando [2002] NSWCCA 28
- Xiao v The Queen (2018) 96 NSWLR 1; [2018] NSWCCA 4