CATCHWORDS:
Criminal Practice & Procedure
Appeal against severity of sentence
Sexual offences
Whether sentence excessive
Structure of sentence as required by R v Pearce

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60602/01
KIRBY J
SMART AJ
Tuesday 7 May 2002

REGINA v Christopher David MYERS

Judgment

KIRBY J: Christopher David Myers (the applicant) seeks leave to appeal against the severity of the sentence imposed by Garling DCJ on 24 August 2001.
Mr Myers pleaded guilty to 11 sexual offences involving under age males. The sentence was partly cumulative and partly concurrent. It was structured in a way that I will shortly describe. The term, in total, was for 8 years imprisonment, with a non-parole period of 5 years.
Background
The offences took place between 1995 and 5 December 1999. Four of the victims were brothers. The remaining victim was a friend of the youngest brother. The ages of the victims, at the time of each offence, varied between 11 years and 18 years. To preserve the anonymity of the victims I will refer to them by an initial.
Mr Myers met one brother (T) in 1993. By this means he got to know the family. He then formed a relationship with T's mother. In 1996, he moved in with the family. He became, in effect, a step-father to four of the victims.
The oldest brother (P) was born in 1979. The youngest (B) was born in December 1984. There were two brothers in between, T (1980) and K (1981). The friend of the youngest brother (S) was born in February 1985.
The Offences
The charges were grouped, according to victim. The first three counts related to one of the brothers, T, the second oldest (born 1980). The first offence occurred when T was 14 or 15. Both he and the applicant were staying in a flat belonging to the applicant's father. T was provided with alcohol by the applicant. During the night, the applicant called T to his bedroom. He was in bed, undressed, holding his penis. The applicant was then a man aged about 31. He asked T to join him in bed. T felt obliged to do so. The applicant then touched T's penis. He inserted his finger in T's anus. They then masturbated each other to ejaculation.
The charge was brought under s66C(1) of the Crimes Act 1900 (the Act). The maximum penalty under the section is 8 years. His Honour imposed a fixed term of imprisonment of 3 years, commencing on 22 May 2001.…

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.

Continue reading R v Myers

Details

AGLC: R v Myers [2002] NSWCCA 162
Case: [2002] NSWCCA 162
Decision Date: 7 May 2002

CaseChat Overview and Summary

The appeal in R v Myers was against the severity of the sentence imposed on the appellant, who had pleaded guilty to 11 sexual offences involving under age males. The offences were committed between 1995 and December 1999 and involved four brothers and a friend of the youngest brother, whose ages ranged from 11 to 18 years at the time of the offences. The appellant had met one of the brothers in 1993 and subsequently formed a relationship with the boy's mother, eventually moving in with the family and becoming a step-father to four of the victims.

The legal issues before the court were whether the sentence was excessive and whether it was structured in accordance with the principles set out in R v Pearce. The court had to consider the cumulative and concurrent nature of the sentence, the overall term of imprisonment, and the non-parole period, in light of the appellant's guilty plea and the nature and gravity of the offences. The court also had to assess whether the sentence reflected the need to deter the appellant and others from committing similar offences and whether it was proportionate to the crimes committed.

In determining the appeal, the court considered the principles established in R v Pearce, which require that sentences for multiple offences be structured in a way that reflects the overall culpability of the offender and the need to deter both the offender and others from committing similar crimes. The court noted that the sentence imposed was partly cumulative and partly concurrent, with a total term of 8 years imprisonment and a non-parole period of 5 years. The court held that the sentence was not excessive and was appropriately structured to achieve the aims of general and specific deterrence, retribution, and denunciation. The court also found that the sentence was proportionate to the gravity of the offences committed by the appellant.

The court dismissed the appeal against the severity of the sentence. The final orders of the court were that the appeal be dismissed, and the sentence originally imposed by the trial judge be upheld. The appellant was to serve an 8-year term of imprisonment, with a non-parole period of 5 years.

Orders

Orders of the court

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Background

Background to the litigation

Mr Myers pleaded guilty to 11 sexual offences involving under age males. The sentence was partly cumulative and partly concurrent. It was structured in a way that I will shortly describe. The term, in total, was for 8 years imprisonment, with a non-parole period of 5 years.Background The offences took place between 1995 and 5 December 1999. Four of the victims were brothers. The remaining victim was a friend of the youngest brother. The ages of the victims, at the time of each offence, varied between 11 years and 18 years. To preserve the anonymity of the victims I will refer to them by an initial. Mr Myers met one brother (T) in 1993. By this means he got to know the family. He then formed a relationship with T's mother. In 1996, he moved in with the family. He became, in effect, a step-father to four of the victims. The oldest brother (P) was born in 1979. The youngest (B) was born in December 1984. There were two brothers in between, T (1980) and K (1981). The friend of the youngest brother (S) was born in February 1985.The Offences The charges were grouped, according to victim. The first three counts related to one of the brothers, T, the second oldest (born 1980). The first offence occurred when T was 14 or 15. Both he and the applicant were staying in a flat belonging to the applicant's father. T was provided with alcohol by the applicant. During the night, the applicant called T to his bedroom. He was in bed, undressed, holding his penis. The applicant was then a man aged about 31. He asked T to join him in bed. T felt obliged to do so. The applicant then touched T's penis. He inserted his finger in T's anus. They then masturbated each other to ejaculation. The charge was brought under s66C(1) of the Crimes Act 1900 (the Act). The maximum penalty under the section is 8 years. His Honour imposed a fixed term of imprisonment of 3 years, commencing on 22 May 2001. He declined to fix a non-parole period. The second charge involved an incident which took place a short time after the first. At the same flat, each masturbated the other. T was then 14 or 15 years old. The offence charged was that of aggravated indecent assault (s61M(1) of the Act). The maximum penalty for that offence was 7 years. His Honour imposed a fixed term of 2 years. It was a concurrent sentence, commencing on the same date as count 1 (22 August 2001). No non-parole period was fixed. The third charge concerned an offence under s78Q(1) of the Act. It alleged an act of gross indecency involving T and another brother, K. It took place at the applicant's work place, a factory. At the request of the applicant, T and K masturbated themselves in front of a video camera, which the applicant operated, the image appearing on a television screen. The facts agreed acknowledged that these were not isolated incidents. The statement of facts included the following (substituting initials for the name which appeared):"Sexual contact between the accused and (T) involving masturbation took place on other occasions between the period of 1995 until towards the end of 1999. This activity took place at various houses at which the family resided and at the Rydalmere factory."

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIRBY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KIRBY J

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Citations

AGLC Citation

R v Myers [2002] NSWCCA 162

Most Recent Citation

R v Dobie [2009] QCA 394

Cases citing this decision · 14 of 14 shown

R v Packer
[2023] NSWCCA 87

…rent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at para 34. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest t…
Davidson v R
[2022] NSWCCA 153

…rent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at paragraph 34. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not sugg…
R v Yuen
[2019] ACTSC 70 Para 34

…urrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at [34] . At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest t…
R v DS (No 2)
[2017] NSWDC 358 Para 34

…rent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at [34]. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that…
GS v R
[2016] NSWCCA 266 Para 34

…urrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at [34]. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest th…
R v Gommeson
[2014] NSWCCA 159

…urrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at para 34. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest…
Reeves v R; R v Reeves
[2013] NSWCCA 34

…4 A Crim R 244 R v Hammoud (2000) 118 A Crim R 66 R v Hemsley [2004] NSWCCA 228 R v Isaacs (1997) 41 NSWLR 374 R v Israil [2002] NSWCCA 255 R v Myers [2002] NSWCCA 162 R v Wilson [2005] NSWCCA 219 R v Wright (1997) 93 A Crim R 48 Reibl v Hughes [1980] 2 SCR 880 Richards v Rahilly [2005] NSWSC 352 Rogers v Whitaker (…
R v PFC
[2011] NSWCCA 117

…urrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at para 34. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest…
R v Dobie
[2009] QCA 394 Para 1

…63 at [30] – [39], [66] – [71]. [20] Pearce v The Queen (1998) 194 CLR 610 at [40], per McHugh, Hayne and Callinan JJ. [21] R v Myers [2002] NSWCCA 162 per Kirby J, Smart AJ agreeing, at [34]. [22] Mill v The Queen (1988) 166 CLR 59; Johnson v The Queen (2004) 205 ALR 346.…
Elmir v R
[2009] NSWCCA 22 Para 18

…Reliance was placed upon the following passage from the judgment of Kirby J in R v Myers (2002) NSWCCA 162 at [34]: “ Pearce required that certain things be considered… [C]onsideration must be given as to whether the sentences imposed should be made concurrent or cumulative (or partially one or the other). It will…
Miletic v The Queen
[2008] NSWCCA 74 Para 11

…er (1983) 3 NSWLR 245 at 260 R v Janceski (No 2) [2005] NSWCCA 288 R v Jurisic (1998) 45 NSWLR 209 at 249 R v MMK [2006] NSWCCA 272 at [11] R v Myers [2002] NSWCCA 162 at [34] R v Percy [1975] Tas SR 62 at 73 R v T (NSWCCA, 19 June 1995). R v Wegener [1999] NSWCCA 405 R v Wheeler [2000] NSWCCA 34 at [34] – [37] R v…
R v Hamid
[2006] NSWCCA 302 Para 4

…rent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at para 34. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest t…
R v Knight
[2005] NSWCCA 253

…7 R v Thomson and Houlton (2000) 49 NSWLR 383 R v El Hani [2004] NSWCCA 162 R v Fidow [2004] NSWCCA 172 R v Kalache (2000) 111 A Crim R 152 R v Myers [2002] NSWCCA 162 R v Wheeler [2000] NSWCCA 34 PARTIES: Regina Kerrie-Ellen Robyn Knight FILE NUMBER(S): CCA 2004/3271 COUNSEL: Ms M Cusack (Appellant) Mr P Ingram (Cr…
R v Sivyer
[2002] NSWCCA 410

…[1999] NSWCCA 297 Regina v Engert (1995) 84 A Crim R 62 Regina v Hammoud (2000) 118 A Crim R 66 Regina v Letteri NSWCCA 18 March 1992 Regina v Myers [2002] NSWCCA 162 Regina v Scognamiglio (1991) 51 A Crim R 81 Regina v Simpson [2001] NSWCCA 534 Regina v Henry [1999] 46 NSWLR 346 Veen v The Queen (No 2) (1988) 164…

View all 14 citing cases →

Cases cited in this decision · 3 of 3 shown

R v AEM
[2002] NSWCCA 58

…idered. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved ( R v AEM Snr & Ors [2002] NSWCCA 58, para 70; R v Kalache (2000) 111 A Crim R 152, per Sully J at 184). The mechanism of making some sentences cumulative, and others concurrent (or part…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 6

…I assume that his Honour allowed, therefore, a discount of 25% (as suggested by R v Thomson & Houlton (2000) 49 NSWLR 383). I do not believe that there is warrant for any greater discount. I will approach the sentence upon this footing.…
Pearce v The Queen
[1998] HCA 57 Para 7

…The real grievance of the applicant is the suggested departure from Pearce v The Queen (1994) 194 CLR 610, and the suggestion that the sentence imposed was too severe. The principle in Pearce v The Queen was conveniently summarised by Simpson J in R v Hammoud (2000) 118 A Crim R 66, where her Honour said this: (at 67…

Legislation cited in this decision · 2

Crimes Act 1900 (ACT)
1 mention (from Para 7)
Criminal Appeal Act 1912 (NSW)
1 mention (from Para 3)