Regina v Donald Many

[1999] NSWCCA 241

CITATION:	Regina v Donald Many [1999] NSWCCA 241
FILE NUMBER(S):	CCA 60665/97
HEARING DATE(S):	28 June 1999
JUDGMENT DATE:	28 June 1999
PARTIES :	Regina Donald Many
JUDGMENT OF:	Sully J; Bell J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/61/0115
LOWER COURT JUDICIAL OFFICER:	Twigg DCJ

COUNSEL:	Appellant - in person Crown - L.M.B. Lamprati
SOLICITORS:	Appellant - in person Crown - C.K. Smith
CATCHWORDS:
ACTS CITED:	Crimes Act 1900, ss 61J(1), 61N(1), 600(2), 610(2) Film and Video Classification Act 1984 Classification (Publications, Film and Computer Games) Enforcement Act 1995
DECISION:	Leave to appeal against sentence granted;; that as to counts 14, 15, 17 and 28 in the indictment the appeal against sentence be allowed, and the term of imprisonment to which the applicant was sentenced in respect of each of those matters be quashed;; that as to all the other sentences imposed upon the applicant his appeals against those sentences be dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60665/97

SULLY J
BELL J

28 June 1999

REGINA v Donald MANY

JUDGMENT

1   SULLY J: On 4 December 1997 Donald Many stood for sentence in the District Court at Broken Hill before his Honour Judge P R Bell.
2   Mr Many had previously pleaded guilty to a number of serious offences involving sexual misconduct of various kinds with very young boys. There were some twenty-eight such offences in all and there were five separate victims. The offences took place at various times throughout the period 1 January 1996 to 1 April 1997. The actual arrangement of the offences within the indictment was as follows:

Counts 1- 6, 18- 22: Aggravated Sexual Assault
(s.61J(1) Crimes Act 1900)
(Maximum Penalty: 20 years penal servitude)
Counts 7- 9: Aggravated Indecent Assault in Presence of Anor Person (child under10)
(s.61O(2) Crimes Act 1900)
(Maximum Penalty: 10 years imprisonment)
Count 10: Aggravated Act of Indecency (child under 10) (s.60O(2) Crimes Act 1900)
(Maximum penalty: 7 years imprisonment)
Count 11: Incite Person under 10 to an Act of Indecency
(s.61O(2) Crimes Act 1900)
(Maximum Penalty: 7 years imprisonment)
Counts 12-13: Aggravated Act of Indecency (child under 16)
(s.61O(2) Crimes Act 1900)
(Maximum Penalty: 5 years imprisonment)
Counts 14-15 17, 28: Procure a Child to Make Child Abuse
Film(s.35 Film and Videotape Classification Act 1984)
(Maximum Penalty: 2 years imprisonment)
Counts 16, 23-25: Aggravated Indecent Assault (child
under 16)
(Maximum Penalty: 7 years
imprisonment)
Counts 26-27: Incite an Act of Indecency (child
under 16)
(s.61N(1) Crimes Act 1900)
(Maximum Penalty: 2 years
imprisonment)

3   In connection with those offences His Honour imposed a range of penalties as follows:

Counts 1-6, 18-22: On each count:
Minimum Term
8 years penal servitude to commence
on 6.4.97 and to expire on 5.4.2005.
Additional Term
4 years to commence on 6.4.2005 and
to expire on 5.4.2009
Counts 7-9: On each count:
Fixed Term
2 years imprisonment to commence on
6.4.97 and to expire on 5.4.99.
Counts 10-11,16,23-25: On each count:
Fixed Term
18 months imprisonment to commence on
6.4.97 and to expire on 5.10.98.
Counts 12 & 13: On each count:
Fixed Term
12 months imprisonment to commence on
6.4.97 and to expire on 5.4.98.
Counts 14-15,17,26-28: On each count:
Fixed Term
6 months imprisonment to commence on
6.4.97 and to expire on 5.10.97.

4   It should be said at once that in connection with counts 14, 15, 17 and 28, that is to say the counts laid by reference to s 35 of the Film and Videotape Classification Act 1984, there appears to have been a miscarriage deriving from the fact that the Act was repealed with effect on and from 1 January 1996, and was replaced with effect on and from the same date by new legislation in the form of the Classification (Publications, Film and Computer Games) Enforcement Act 1995.
5   As has been previously noted, the period within which these particular offences were alleged to have been committed by the present applicant was a period between 1 January 1996 and 1 April 1997, the applicant having actually been charged with those offences, - as indeed with the remainder of the offences charged against him in the indictment, - on 6 April 1997. It thus appears that those four matters were charged under legislation that had in fact been repealed as at the date of the charge. As to those four matters it must therefore follow, in my view, that the convictions recorded in the District Court, and the sentences imposed in the District Court, cannot stand. In due course I will propose orders to deal with that situation.
6   With regard to the balance of the matters charged against the applicant, it is not, I think, necessary for present purposes to explore the detail of the individual offences. It is sufficient to say of each of them that it was an act of disgusting depravity perpetrated upon a young, and in some particular cases a very young, boy, and perpetrated not so much in circumstances of overt accompanying violence, but perpetrated in an atmosphere that was heavy with the threat of violence in the sense of a deliberate overbearing by an older more experienced and more sophisticated adult of the will and wishes of the young inexperienced and singularly unsophisticated victims of these appalling crimes.
7   In terms of objective criminality it needs to be said at once, in my opinion, and clearly and firmly, that the acts were of the gravest culpability. It was, of course, the case that there were subjective matters required by law to be taken into proper account by the learned primary Judge.
8   Complaint is made in connection with the present application for leave to appeal that the primary Judge did not take those matters into account either sufficiently or at all. The applicant complains that his pleas of guilty did not attract a discount that took sufficient account of them, and of the contrition that they were said to express.
9   The applicant draws attention, in a letter addressed to the Court and written from his present place of detention on 21 January last, to various things that have occurred since his sentencing, being things that bear upon the question of his prospects of rehabilitation. He draws attention to the fact that he has, since January 1998, been held in strict protection; and one can well understand why that provision has been made in his particular case.
10   He says, relevantly for present purposes and amongst other things, this:

"I fully realise that I can't stop or control my offending behaviour or thoughts overnight. It will take a few years of my being totally committed to stopping before I can get anywhere at all and I do have that commitment. I know that the percentage rate for success is very small but I have the determination and the will to succeed."

11   The necessary starting point in connection with the disposal of the present application is not a sympathetic review of the subjective features of the applicant's case either as it stood at the time of sentence or as it now stands. The correct starting point is to inquire what error, if any, has been demonstrated in the primary sentencing process, for it is only the clear demonstration of such an error that will justify at all the appellate intervention of this Court.
12   I have read with care the remarks on sentence of the learned primary Judge. It seems to me that His Honour was fully and correctly seized of the relevant objective and subjective aspects of the applicant's individual case. It seems to me that His Honour gave, in the overall balancing process that the law requires, proper weight to the extreme objective gravity of these offences, and proper weight, also, to the relevant subjective features of the applicant's case.
13   Save only for the four matters charged under the repealed Film and Videotape Classification Act 1984, I have not been persuaded that there is any error, latent or patent, in the primary sentencing process, and such as would justify the appellate intervention of this Court. I would propose therefore the following orders:
14   1. That leave to appeal against sentence be granted.

2. That as to counts 14, 15, 17 and 28 in the indictment the appeal against sentence be allowed, and the term of imprisonment to which the applicant was sentenced in respect of each of those matters be quashed.
3. That as to all the other sentences imposed upon the applicant his appeals against those sentences be dismissed.

15   BELL J: I agree.

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