R v Wisbey - [2001] NSWCCA 434

CITATION: R v Wisbey [2001] NSWCCA 434

FILE NUMBER(S): CCA 60504/00

HEARING DATE(S): 17 October 2001

JUDGMENT DATE:
17 October 2001

PARTIES :

Regina
Tony Wisbey

JUDGMENT OF: Wood CJ at CL at 1; Grove J at 36

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/3031; 99/41/0031 & 99/41/0041

LOWER COURT JUDICIAL
OFFICER : Sides DCJ

COUNSEL : C: W Dawe QC
A: G J Piscioneri & Co

SOLICITORS: S E. O'Connor
Ms Piscioneri

CATCHWORDS: CRIMINAL LAW - appeals - appeal against sentence - whether sentence manifestly excessive - sexual offences against children - whether too much weight given to general deterrence - no error of law - applicant's subjective circumstances taken into account - accumulated sentence appropriate so as to reflect totality of criminality involved - appeal dismissed.

LEGISLATION CITED: Crimes Act 1900 (NSW) ss 61J, 66(1)

DECISION: Leave to appeal granted. Appeal dismissed.

60504/00

WOOD CJ AT CL
GROVE J

FRIDAY 17TH OCTOBER 2001

TONY WISBEY V REGINA (NSW)

Judgment

1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence imposed upon him by Judge Sides QC, on 20 July 2000 following his pleas of guilty to a series of offences. They may be briefly noted.

Count upon indictment

2 This involved an offence of sexual intercourse with a child aged between ten and sixteen years: (s 66C (1) of the Crimes Act 1900, an offence for which the maximum available sentence is imprisonment for eight years). In relation to this count an offence of aggravated indecent assault was also taken into account.

3 The offence the subject of the indictment occurred in May 1997 and involved a thirteen year old boy who had been staying with the applicant. It occurred when the applicant sucked the boy's penis while he was asleep in his bed, causing him to awake. He had been on bail for an earlier sexual assault at the time of its commission.

4 The offence on the form 1 occurred over the Easter weekend in 1998. On this occasion, again during the night, the applicant touched the same boy in the area of his genitals.

5 When this matter came before his Honour on 26 November 1999, it was stood over by way of a Griffiths remand until 26 May 2000, to enable the applicant to develop a co-operative relationship with a counsellor in order that he might address the disability and the personal problems which I will later mention, and to prove himself to the Court. He was required, as a condition of his bail, to accept the reasonable directions of the Probation and Parole Service in relation to counselling and therapy.

6 His Honour took this course notwithstanding the fact that the matter had previously been adjourned for six months for a similar purpose. His Honour did, however, make it clear to the applicant that if he did not co-operate and show signs of progress, his bail would be revoked and he could expect to receive…

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 Wisbey

Details

AGLC: R v Wisbey [2001] NSWCCA 434
Case: [2001] NSWCCA 434
Decision Date: 17 October 2001

CaseChat Overview and Summary

In the matter of R v Wisbey, the respondent appealed against his sentence imposed for sexual offences against children. The High Court of Australia was called upon to determine whether the sentence was manifestly excessive and if too much weight was given to general deterrence. The appellant argued that the sentence was excessive and did not adequately consider his subjective circumstances. The Crown, in turn, contended that the sentence was appropriate given the gravity of the offences and the need for general deterrence.

The court considered whether the sentence imposed was manifestly excessive and if the trial judge had erred in giving too much weight to general deterrence. The court noted that the trial judge had taken into account the appellant's subjective circumstances, including his age, background, and the likelihood of rehabilitation. The court held that there was no error of law in the trial judge's approach and that the sentence reflected the totality of the criminality involved. The court also emphasised the importance of general deterrence in cases involving sexual offences against children.

The court found that the sentence was not manifestly excessive and that the trial judge had appropriately balanced the need for general deterrence with the appellant's subjective circumstances. The appeal was dismissed, and the sentence imposed by the trial judge was upheld. The court's decision underscores the importance of considering both the gravity of the offence and the individual circumstances of the offender when imposing a sentence for serious crimes.

Orders