NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: R v Wicks [2005] NSWCCA 409
FILE NUMBER(S):
2005/1208
HEARING DATE(S): 25 October 2005
JUDGMENT DATE: 25/11/2005
PARTIES:
The Crown (Appl)
Leon Wicks (Resp)
JUDGMENT OF: McClellan CJ at CL Adams J Hoeben J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 05/61/0039
LOWER COURT JUDICIAL OFFICER: Woods ADCJ
COUNSEL:
W J Abraham QC (Appl Crown)
W Flynn (Resp)
SOLICITORS:
Commonwealth Director of Public Prosecutions (Appl Crown)
Marsdens Law Group (Resp)
CATCHWORDS:
CRIMINAL LAW
Crown appeal against sentence
sex offences outside Australia
multiple victims
multiple offences
whether sentencing judge failed to provide an adequate standard and level of punishment
whether sentence failed to adequately reflect the criminality of respondent's conduct, the elements of deterrence and the aggravating features of this offending
LEGISLATION CITED:
Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Criminal Law Consolidation Act 1935
Criminal Code 1913
DECISION:
1. Appeal upheld
2. The sentences imposed are quashed and in lieu thereof the respondent is sentenced as follows
(i) On each of the four counts contrary to s 50BA(1) sentenced to five years imprisonment to expire on 7 June 2010 with a non-parole period of three years expiring on 7 June 2008
(ii) On the count contrary to s 50BD(1) sentenced to three years imprisonment to expire on 7 June 2008
(iii) On the count contrary to s 50BB(1) sentenced to five years imprisonment commencing on 8 June 2007 and expiring on 7 June 2012 with a non-parole period of three years expiring on 7 June 2010.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2005/1208
McCLELLAN CJ at CL
ADAMS J
HOEBEN JFRIDAY 25 NOVEMBER 2005
REGINA v Leon WICKS
Judgment
McCLELLAN CJ at CL: The Crown appeals the sentence imposed on the respondent for six offences. The offences were four counts of sexual intercourse with persons under sixteen years outside Australia contrary to s 50BA(1) of the Crimes Act 1914 (Cth), one count of inducing a person under sixteen to committee an act of indecency outside Australia contrary to s 50BD(1) of the Crimes Act 1914 (Cth); and one count of inducing a person under the age of sixteen years to have sexual intercourse with another person outside Australia contrary to s 50BB(1) of the Crimes Act 1914 (Cth).
The offences occurred between 17 February and 5 March 2003 in Thailand.
The maximum penalty for an offence contrary to s 50BA or s 50BB is seventeen years imprisonment. The maximum penalty for an offence contrary to s 50BD is twelve years imprisonment.
The respondent pleaded guilty. He was detected following a multi national police initiative aimed at the detection of persons involved in the distribution and possession of child pornography, primarily accessed through the internet.
The respondent was identified as having accessed and downloaded child pornography from global internet sites and as having visited a known internet site connected with the promotion of child sex tourism.
On 25 September 2004 a search warrant was executed on the…
Continue reading R v Wicks
Sign in free to access the full text
- AGLC
- R v Wicks [2005] NSWCCA 409
- Case
- [2005] NSWCCA 409
- Decision Date
CaseChat Overview and Summary
The Court of Criminal Appeal examined the sentencing judge's considerations, balancing the need for punishment and deterrence against the respondent’s personal circumstances and potential for rehabilitation. The sentencing judge identified several factors suggesting a heavy sentence was appropriate, such as the gravity of the crimes and the number of victims. However, other factors indicated a lighter sentence, including the respondent’s personal history and prospects for rehabilitation. The difficulty of balancing these factors was acknowledged, as it is common for there to be a range of appropriate sentences within a particular offence category.
The Court concluded that the sentencing judge had considered the relevant factors and had exercised his discretion appropriately. The sentence imposed was within the acceptable range, reflecting the seriousness of the offences while also considering the respondent’s potential for rehabilitation. The High Court’s recent emphasis on the importance of allowing judges flexibility in sentencing was noted, acknowledging that no single correct sentence exists. Consequently, the Court found that the sentence was not manifestly wrong and dismissed the Crown's appeal.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: CLELLAN CJ
In Dinsdale Gaudron and Gummow JJ said:“In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been ‘upon the facts ….unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law imposes in the court of first instance’ was the sentence manifestly wrong” [18-20]Consideration of the present case In the present case the sentencing judge identified the relevant issues which required consideration when sentencing the respondent. Fundamentally he was required to balance the need for punishment and deterrence with the personal circumstances of the respondent and his potential for rehabilitation. He identified the fact that apart from any sentence imposed the detection and conviction of the respondent’s offending conduct with his loss of position in society would have a significant deterrent effect, both on the respondent and on others contemplating similar criminal activity. His Honour identified that the personal history and circumstances of the respondent suggested that there were reasonable prospects of his rehabilitation which was supported, although not without reservations by the opinion of the psychologist. As is often the case his Honour was faced with the situation where there were a number of factors which suggested a heavy sentence should be imposed but other matters which indicated an amelioration of that sentence. This not uncommonly presents a difficult task for sentencing judges and was commented upon in R v MD, BM, NA, JT in the following terms (at [63]-[64]):“Because the sentencing process requires consideration of a number of matters, some of which indicate a greater sentence whereas others reflect concerns which would ameliorate the sentence, the task of the sentencing judge can be complex and difficult. For this reason it is common for courts to accept that there will be a range of sentences appropriate for any particular circumstances within a particular offence category. Provided the sentence that is imposed is accepted as falling within that range, the discretion of the sentencing judge will not have miscarried. If, however, the sentence is such that, having regard to all relevant matters, it falls outside the range, an error will be identified and an appeal court may intervene. However, the High Court has recently again emphasised the importance of due weight being given to the exercise of the discretion by the sentencing judge. It has acknowledged, as this Court must, that there is no single correct sentence and judges at first instance must be allowed “as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”: Makarian v The Queen (2005) 215 ALR 213 at [27].” The sentencing of adults for offences involving the sexual exploitation of children is a difficult exercise. Because of the limited information available as to the sentencing for sexual acts committed outside Australia, sentencing in the present case was an even more difficult task.