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

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

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:

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.

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.

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.

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.

Two counts…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWCCA 28
Decision Date: 03 March 2016

CaseChat Overview and Summary

The appellant, Peter Wayne Graham Scott, appealed against his conviction and sentence for 13 counts of sexual assault and supplying stupefying drugs to five young boys. The case was heard by the High Court of Australia. The appeal was partially successful, resulting in a requirement to re-sentence the appellant. The court examined the legal principles governing the severity and appropriateness of the sentence, as well as the aggregate sentence imposed by the lower court. The appellant's legal team argued that the original sentence was excessively harsh and did not adequately reflect the circumstances of the case.

The primary legal issues before the court involved the assessment of the aggregate sentence imposed on the appellant. The court had to determine whether the sentence was appropriate in all the circumstances, considering the nature and severity of the crimes committed, the appellant's criminal history, and the impact on the victims. The court also needed to decide if there were any errors in the calculation of the aggregate sentence by the lower court. Furthermore, the court had to consider whether the aggregate sentence was proportionate to the crimes committed and whether there were any mitigating factors that should have been taken into account.

The High Court found that while the conviction should stand, the aggregate sentence imposed was excessive. The court held that the lower court had not adequately considered the mitigating factors present in the case, leading to an overly harsh sentence. The court emphasised the importance of proportionality and individualisation in sentencing, ensuring that the sentence reflects the specific circumstances of the case and the offender. The High Court ordered that the appellant be re-sentenced by the lower court, taking into account the appropriate mitigating factors and ensuring that the new sentence is proportionate and just.

The High Court did not provide specific details about the new sentence to be imposed but directed that the lower court re-evaluate the case with the appropriate considerations in mind. The court stressed the importance of proportionality and individualisation in sentencing, ensuring that the sentence reflects the specific circumstances of the case and the offender. The appellant's legal team will need to prepare for the re-sentencing hearing, presenting any additional mitigating evidence and arguments to ensure that the new sentence is fair and just.

Orders