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Court of Criminal Appeal 22 May 2024

WP v R

[2024] NSWCCA 77

Sexual offencesAssault & violence
CRIME APPEALS SENTENCE ERROR CONCEDED PAROLE PERIOD ALSO CONCEDED MULTIPLE CHILD VICTIMS

Citation: WP v R [2024] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 22 May 2024
Judges: Payne JA, Mitchelmore JA, Wilson J

Background

The applicant (whose name is suppressed to protect his victims) was sentenced in the District Court following guilty pleas to a large number of serious offences committed between July 1995 and October 2019. The offences included persistent sexual abuse of a child, sexual intercourse with children under and between certain ages, aggravated indecent assault, attempts to have sexual intercourse with children, inciting children to commit acts of indecency, multiple counts of assault occasioning actual bodily harm, and possession of child abuse material. Six children were victims: three stepchildren and three natural children of the applicant.

The applicant had initially pleaded not guilty to all charges and was committed for trial. On the first day of the eventual trial in May 2022, the first complainant began giving evidence in chief. After that witness did not resume the following day, the applicant indicated he would enter guilty pleas. He subsequently pleaded guilty to fifteen counts and acknowledged guilt on a further eighteen counts via Form 1 documents, with the remaining alternative counts requiring no plea.

The sentencing judge imposed an aggregate sentence of 28 years with a non-parole period of 20 years. The applicant sought leave to appeal against that sentence on two grounds, later expanded to three.

  • Whether the sentencing judge erred by failing to apply any discount for the guilty plea to one particular count
  • Whether the sentencing judge applied an incorrect maximum penalty and standard non-parole period to certain counts
  • Whether, having identified those errors, the Court of Criminal Appeal should re-exercise the sentencing discretion and impose a lesser sentence

Decision

All three errors were conceded by the Crown: the sentencing judge had inadvertently applied no discount in relation to one count, and had also applied an incorrect maximum penalty and standard non-parole period to other counts. The Court granted leave to appeal on all three grounds accordingly.

Despite those conceded errors, the Court was required to determine under the Criminal Appeal Act 1912 (NSW) whether any lesser sentence was warranted in law. The Court found that it was not. Wilson J (with whom Payne JA and Mitchelmore JA agreed) conducted a detailed review of the overall sentence and the nature and extent of the offending.

The offending spanned approximately 18 years and was directed at every child to whom the applicant had access in a domestic setting. Wilson J noted that the abuse occurred largely within the children's home, corrupting an environment that should have been safe and nurturing. Victim impact statements indicated the harm caused was very great and likely to be lifelong.

The Court accepted that the applicant's dysfunctional background, his depressive condition, the likely deterioration of his health, and the particular hardships of his custody had all been properly taken into account by the sentencing judge. The continuing possession of child abuse material in 2019 was noted as evidence of the applicant's ongoing disregard for the criminal law. Nothing in the subjective case, or in any material placed before the Court of Criminal Appeal, provided a basis for further reducing the sentence.

Orders Made

  • Leave to appeal on grounds 1, 2, and 3 was granted
  • The appeal was dismissed

Key Takeaways

  • Conceded sentencing errors do not automatically produce a lesser sentence on appeal: where the overall sentence remains proportionate to the gravity and extent of the offending, the Court of Criminal Appeal may decline to reduce it even after finding error.
  • In dismissing the appeal, the Court reinforced that the statutory question under the Criminal Appeal Act is whether a lesser sentence is "warranted in law," not merely whether an error occurred below.
  • Where a sentencing judge has already taken into account relevant mitigating factors (including health, background, and likely conditions of custody), an appellate court will not disturb those findings absent compelling additional material.
  • Guilty pleas entered partway through trial, after one complainant had spent nearly three hours giving evidence in chief, will attract only a limited discount reflecting the timing and circumstances of the plea.
  • The gravity of systematic and prolonged child sexual and physical abuse of multiple victims in a domestic setting, spanning nearly two decades, was treated as a significant factor militating against any reduction in the aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Crimes Act 1900 (NSW), ss 59(1), 61, 61M(1), 61O(1), 61O(2), 66A, 66C(2), 66D, 66EA(1), 91H(2)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Gurin v R [2022] NSWCCA 193
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Panetta v Regina [2016] NSWCCA 85
- R v Smith [2007] NSWCCA 138
- Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; [2023] HCA 3
- Turnbull v R [2019] NSWCCA 97