AB [Peter Wayne Graham Scott] v The Queen (No 2)

[2016] NSWCCA 28

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	AB [Peter Wayne Graham Scott] v R (No 2) [2016] NSWCCA 28
Hearing dates:	On the papers
Decision date:	03 March 2016
Before:	Bathurst CJ at [1] Hoeben CJ at CL at [2] RS Hulme AJ at [15]
Decision:	(1) The sentence imposed by Huggett DCJ on 2 May 2014 is quashed. (2) In lieu thereof, the appellant is sentenced to imprisonment with an aggregate non-parole period of 7 years commencing 13 March 2014 with a balance of term of a further 6 years.
Catchwords:	CRIMINAL LAW – Conviction appeal partially successful – need to re-sentence – 13 counts of sexual assault and supplying stupefying drugs to five young boys – reduced aggregate sentence imposed.
Legislation Cited:	Crimes Act 1900 – s 38, s 61E(1), s 61E(1)(a), s 78K, s 78N
Cases Cited:	AB v R [2015] NSWCCA 315
Category:	Principal judgment
Parties:	[AB] Peter Wayne Graham Scott – Appellant Regina – Respondent Crown
Representation:	Counsel: Mr J Stratton SC/Ms C Wasley – Appellant Ms G O’Rourke – Respondent Crown   Solicitors: Brenda Duchen Solicitor – Appellant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2012/009555
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 2 May 2015 Before: Huggett DCJ File Number(s): 2012/009555

Judgment

1. BATHURST CJ: I agree with the orders proposed by Hoeben CJ at CL and with his Honour's reasons.

2. HOEBEN CJ at CL:

Factual Background

Peter Wayne Graham Scott (the appellant) was convicted of a number of counts in three trials before Judge Huggett DCJ. On 2 May 2014 her Honour sentenced the appellant in relation to the counts in all three trials to an aggregate sentence of imprisonment of 14 years with a non-parole period of 7 years and 6 months to date from 13 March 2014. Her Honour specified indicative sentences for each of the counts for which the appellant was sentenced.

3. After the three trials, the appellant was found guilty of a total of 14 counts (now 13) of sexual assault and supplying stupefying drugs to five young boys, through his association with them as a teacher at their school, between 1984 and 1986. The counts comprised the following:

1. Three counts of causing to be taken a stupefying drug with the intention of homosexual intercourse (s 38 Crimes Act 1900) which carried a maximum penalty of imprisonment for life.

2. Four counts of homosexual intercourse by a teacher upon a pupil (s 78N Crimes Act 1900) which carried a maximum penalty of imprisonment for 14 years.

3. Two counts (now one) of homosexual intercourse with a male above the age of 10 years but under the age of 18 years (s 78K Crimes Act 1900) which carried a maximum penalty of imprisonment for 10 years.

4. Two counts of indecent assault upon a person under 16 years and under authority (s 61E(1)(a) Crimes Act 1900) which carried a maximum penalty of imprisonment for 6 years.

5. Two counts of indecent assault (s 61E(1) Crimes Act 1900) which carried a maximum penalty of imprisonment for 4 years.

6. One count of act of indecency which carried a maximum penalty of imprisonment for 2 years.

4. The indicative sentences imposed by her Honour totalled in excess of 35 years.

5. By proceedings in this Court (AB v R [2015] NSWCCA 315) the appellant appealed against his conviction in respect of four counts relating to offences against GM. His appeal against conviction in three of those counts was dismissed, but he was successful in respect of count 6 on the first indictment, being a conviction for the offence of homosexual intercourse with GM who was then above the age of 10 years but under the age of 18 years, namely 15 years, contrary to s 78K Crimes Act 1900. The indicative sentence imposed for this offence was 3 years.

Re-sentence of appellant

6. Because the appellant was successful in relation to his conviction for this offence, it is necessary for him to be re-sentenced. Accordingly, when judgment was handed down in the primary appeal, the parties were directed to provide written submissions on re-sentence. Those of the appellant were received on 1 February 2016 and those of the Crown on 15 February 2016. This judgment relates to the re-sentence of the appellant.

7. The appellant was born on 13 November 1950 and was aged 63 when sentenced. He had been in a relationship with his de facto wife for 32 years and had one daughter born in 1986. Before these offences, he was a person of good character and her Honour found that his prospects of future offending were low.

8. It is clear from the indicative sentences and from the aggregate sentence actually imposed, that there was a considerable amount of concurrency involved in the sentences. Nevertheless, it is accepted, as was submitted on behalf of the appellant, that the quashing of the conviction for count 6 on the first indictment should result in a genuine and not merely symbolic reduction in the aggregate sentence.

9. However, in re-sentencing it needs to be kept in mind that the counts involving GM (the first indictment) and SS (the second indictment) were found by her Honour not to be isolated incidents of the sexual and drug offences committed by the appellant against those boys, thereby depriving him of leniency. Her Honour found beyond reasonable doubt that the offences committed against those two victims were aggravated due to the substantial harm caused to them as disclosed by their Victim Impact Statements (sentence judgment 20-21).

10. It should be noted that GM was older when the events in count 6 took place than in the earlier counts on indictment one and was also generally older by comparison with the other victims.

11. It should be noted that the appellant was convicted of the offences in each case following a trial and that an unchallenged finding was made by her Honour that there was no evidence of remorse or contrition.

12. By reference of the whole of her Honour’s sentence judgment, it is not possible to discern the weight which her Honour gave to particular offences or individual indicative sentences in arriving at the aggregate sentence and non-parole period she imposed. It can, however, be inferred that each indicative sentence was notionally reduced substantially.

13. Seven of the fourteen indicative sentences were greater than that indicated in respect of count 6 on the first indictment. This demonstrated, as did the description of the offences themselves, that the offence the subject of count 6 was in the mid range of seriousness in the list of the appellant’s offences. In making that observation, I am of course mindful of the fact that because this Court has to re-sentence, it is necessary for the Court to approach the sentencing of the appellant afresh. Since her Honour’s finding of special circumstances has not been challenged, it is also necessary to have regard to that when re-sentencing.

14. The orders which I propose are as follows:

1. The sentence imposed by Huggett DCJ on 2 May 2014 is quashed.

2. In lieu thereof, the appellant is sentenced to imprisonment with an aggregate non-parole period of 7 years commencing 13 March 2014 with a balance of term of a further 6 years.

15. RS HULME AJ: I agree with Hoeben CJ at CL.

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Decision last updated: 03 March 2016