R v Wisbey [2001] NSWCCA 434

New South Wales Court of Criminal Appeal

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 Sides DCJ OFFICER :

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.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

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 a gaol sentence. 7 When the matter came back before his Honour on 29 May 2000 it became apparent that the applicant had not co-operated in relation to counselling and his bail was then rescinded.