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Court of Criminal Appeal 2 May 2025

R v Williams

[2025] NSWCCA 63

Sexual offences
CRIME APPEALS CROWN APPEAL AGAINST SENTENCE GUILTY PLEAS MANIFEST INADEQUACY APPEAL ALLOWED

Citation: R v Williams [2025] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 2 May 2025
Judges: Davies J, Wright J, Dhanji J (Dhanji J delivering the principal judgment)

Background

The respondent pleaded guilty in the District Court at Queanbeyan to nine federal offences involving procuring or attempting to procure persons he believed to be children to engage in sexual activity with him outside Australia, and the persistent sexual abuse of two children outside Australia. He also pleaded guilty to a State offence of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW). All offences were committed remotely.

The sentencing judge, English DCJ, imposed an aggregate term of 3 years and 4 months imprisonment with a non-parole period of 1 year and 10 months for the federal offences. The sentence for the State offence was wholly concurrent and was not challenged on appeal.

The Crown appealed under s 5D of the Criminal Appeal Act 1912 (NSW), contending the aggregate sentence was contrary to law and manifestly inadequate. The respondent conceded all grounds of appeal were established and that resentencing was appropriate.

  • Whether the aggregate sentence fell below 50 percent of the mandatory minimum sentences applicable to two of the federal offences (sequences 10 and 11), contrary to s 16AAA of the Crimes Act 1914 (Cth).
  • Whether the nominated indicative sentence for sequence 9 fell below the floor of 75 percent of the applicable mandatory minimum sentence under s 16AAC of the Crimes Act 1914 (Cth), given the respondent was not entitled to a cooperation discount.
  • Whether the sentences for sequences 9, 10, 11, 13 and 19, the cumulation orders, and the non-parole period were manifestly inadequate.
  • Whether the prosecution's concession, that it could not prove the persons involved were actually children, was consistent with the elements of the offences charged, and what effect that concession should have on resentencing.

Decision

On the Director's concession about the victims' ages: During the appeal, counsel for the Director conceded the prosecution could not prove the persons the subject of the charges were actually under 16 years of age, and that the offences proceeded on the basis the respondent believed them to be children. The Court found this concession was inconsistent with the elements of the offences under s 272.11(1) of the Criminal Code (Cth), which do require proof that the subject is a child, and the concession was properly withdrawn in relation to those sequences. Leave was also granted to withdraw the concession regarding scheduled sequences, though the Court noted this had limited practical effect on the resentencing exercise.

On grounds 1 and 2: The statutory framework under ss 16AAA and 16AAC of the Crimes Act 1914 (Cth) sets mandatory minimum sentences and establishes a floor below which sentences cannot fall even with maximum discounts. The aggregate sentence imposed at first instance was less than 50 percent of the mandatory minimum of 7 years for sequences 10 and 11, making it contrary to law. The indicative sentence of 2 years for sequence 9 was also unavailable because, without a cooperation discount, the floor was 75 percent of the mandatory minimum, being 3 years.

On ground 3 and resentencing: All three grounds being established, the Court allowed the appeal, quashed the original sentence, and resentenced the respondent. The respondent was entitled to a 25 percent guilty plea discount. He was not entitled to a cooperation discount under s 16AAC. However, in light of the Director's concession about the difficulty of proving the victims' actual ages, the Court recognised additional utilitarian value in the pleas for sequences 10 and 11, allowing a combined discount of 50 percent. Even so, the statutory floor of 75 percent of the mandatory minimum (being 5 years and 3 months) applied, since only one qualifying factor under s 16AAC(2) was present.

On the non-parole period: The Court noted the respondent's advanced age and health as salient factors. It also acknowledged that the operation of the statutory floor produced head sentences higher than they might otherwise have been, which engaged the principle of equal justice, a consideration recognised in Hurt v The King [2024] HCA 8 as potentially affected by mandatory minimum provisions. The Court took that distortion into account when setting the non-parole period at 4 years against a head sentence of 8 years.

Orders Made

  • The appeal is allowed.
  • The aggregate sentence imposed by English DCJ on 15 November 2024 is quashed.
  • In lieu thereof, the respondent is resentenced to an aggregate term of imprisonment of 8 years with a non-parole period of 4 years, commencing 7 February 2023.
  • The non-parole period expires 6 February 2027; the head sentence expires 6 February 2031.
  • No order was made in relation to the State offence sentence, which had already expired.

Key Takeaways

  • Under ss 16AAA and 16AAC of the Crimes Act 1914 (Cth), mandatory minimum sentences create a statutory floor that limits how far a sentencing court may discount below the prescribed minimum, even when a guilty plea is entered. A sentence that falls below that floor is contrary to law, not merely inadequate.
  • A guilty plea does not operate as an admission of fact capable of binding the court on elements of separate, related offences. Where an offender pleads guilty to charges with different elements, each charge must be assessed by reference to what the prosecution can prove for that specific offence.
  • Where prosecutorial concessions about proof are later found to be inconsistent with the elements of charges, the Court of Criminal Appeal can grant leave to withdraw those concessions during the appeal, though their practical significance will depend on the circumstances of resentencing.
  • The principle of equal justice may be implicitly engaged when mandatory minimum provisions produce a head sentence higher than the ordinary sentencing calculus would generate. The Court in this case accommodated that distortion when determining the non-parole period, consistent with the approach flagged in Hurt v The King.
  • The utilitarian value of a guilty plea, and the degree of discount available, can be influenced by the prosecution's ability to prove the charge at trial. Here, the difficulty of proving the victims' actual ages was reflected in an enhanced discount for the pleas to sequences 10 and 11, even though the statutory floor still applied.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 272.8, 272.9, 272.11(1), 272.14(1), 272.15A(1)
- Crimes Act 1914 (Cth), ss 16A, 16AAA, 16AAB, 16AAC, 16BA, 19, 19B, 20(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 53A
- Criminal Appeal Act 1912 (NSW), ss 5D, 12(2)
- Child Protection (Offenders Registration) Act 2000 (NSW), ss 16C, 17(1)
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 5A(1)(a)
- Crimes Act 1900 (NSW), s 91H(2)

Cases:
- Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485
- R v Ellis (1986) 6 NSWLR 603
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- McGregor v R [2024] NSWCCA 200
- Panetta v R [2016] NSWCCA 85
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2