R v Wran

District Court of NSW|2021-07-29

Solicitors: Office of the Director of Public Prosecutions (Crown) Viney Law (Offender) File Number(s): 2019/00099382 Publication restriction: Section 578A(2) of the Crimes Act 1900 applies to this matter - no publication of any matter which identifies the complainant or may lead to the identification of the complainant.

Judgment

Section 578A(2) of the Crimes Act 1900 applies to this matter, that is, that there is to be no publication of any matter which identifies the complainant or may lead to the identification of the complainant.
David Wran [1] was found guilty by a jury of four counts involving sexual conduct towards a child, and is to be convicted and sentenced.
The offences were, first, aggravated indecent assault of a child under the age of 16 years, under s 61M(2) of the Crimes Act carrying a maximum penalty of 10 years' imprisonment with a standard non‑parole period of 8 years' imprisonment.
Secondly, two counts of attempted sexual intercourse with a child aged 10 to 14 years in circumstances of aggravation under ss 66C(2) and 344A of the Crimes Act, carrying a maximum penalty of 20 years' imprisonment. An offence under s 66C(2) is specified to have a nine-year standard non‑parole period.

THE CIRCUMSTANCES OF THE OFFENCES

In all the offences, the victim was Ruby Jones, at the time a ten-year-old child of Mrs Wran, the wife of the offender, Mr Wran. Mrs Wran was engaged in her employment at various times at Costco. During those times, Mr Wran supervised Ruby at their home. That is when the offences occurred, over the course of about a month. A summary of the victim's account of the events is as follows.
In late November 2018, Ruby was wearing a nightdress and underpants, lying on the bed watching television in her mother's bedroom, whilst her mother was at work. Her stepfather, Mr Wran, entered the room and commenced to watch the television. He reached over to cuddle Ruby and removed her underpants (Count 1) despite her saying to stop. Ruby got off the bed, told him, "Don't do that ever again", ran to her room, put on another pair of underpants, and then continued to watch television. Mr Wran told Ruby, "Don't tell your mum", and she agreed.
Within approximately the following month, Ruby was watching a video on television on a Saturday around lunchtime, again on her mother's bed, whilst her mother was at work. Mr Wran entered the room with some Doritos and together they watched some of the movie. The offender then grabbed Ruby by the feet, dragged her towards the edge of the bed, so that she lay on her back on the bed with her legs on the floor. Mr Wran pulled down his pants. Ruby told the offender to pull up his pants, he said, "No", and he pulled down her tights and underwear, held her by the "belly", and pushed his penis hard against her, around or close to her genital area, but did not penetrate her vagina. "[I]t didn't go in at all," she said. That is Count 2.
Ruby pushed and kicked. The offender eventually let her go and she ran off. When asked, "Where are you going?" She said, "[N]one of your business". The episode lasted about 15 minutes. The victim's genital area, outside her vagina was "sore", "pins and needles…like…poking my skin" and, "if I touched it, it would throb". There was no bleeding but it was found to be red "all over" "where he was trying to…push it in" when she used a mirror to examine herself.
During December 2018, the victim was playing Xbox in the lounge room whilst her mother was at work. The offender shut and locked the front door and said, "[S]ince you've been running away, I'm gunna to try again". Mr Wran grabbed Ruby, pulled her towards him, kissed her on the lips, and pulled up her dress and pulled down her underpants. She said, "Let me go, let me go", to which the offender said, "No, 'cause you've been trying to run away, I'm gunna do it this time". He held her waist whilst removing his shorts, his penis was erect, and he pushed his penis against her genital area, "on my vagina…up here...it was on the top", she said, indicating the bottom of her abdomen. This was Count 3.
The victim kicked the offender. He said, "Calm down". She said, "No, go away". The offender let go of Ruby and commenced to masturbate. She kicked him and slid between his legs and ran into the backyard. This entire event lasted about ten minutes and again she felt pain in her genital area, outside of her vagina. "[I]t hurt for about 10 minutes…and then pain went down."
At about 7pm on 28 December 2018, Ruby was watching a DVD in her bedroom, whilst her mother was at work. Mr Wran walked into her bedroom naked. He said, and this was count 4 on the indictment, "Take off your pants and go to my bedroom". She said, "Why?" He said, "Take off your pants". She replied, "No", ran outside, and unsuccessfully attempted to call her mother.
Later that evening, when Mrs Wran returned, the offender and Mrs Wran argued about the offender not having fed Ruby dinner and being critical of Mrs Wran. The police were called. At the time of the offences, Mr Wran was subject to an extended supervision order.
The next day, Mr Wran was removed from the family home and an Apprehended Domestic Violence Order was issued for the protection of Mrs Wran and her daughter arising from the argument the previous evening.
The evidence before the jury on these offences principally comprised a recorded interview of Ruby in late March 2019, which served as her evidence in chief, and her oral evidence in cross-examination, as well as Mr Wran's record of interview where he denied the events constituting the offences.
Through his counsel, Mr Wran argued on sentence that because of some ambiguous evidence of Ruby in cross-examination the events that constituted counts 2 and 3 should be confined to Mr Wran pulling down his own pants and her pants and underpants. One difficulty with this submission is that such conduct would not of itself be sufficient to establish the offence of attempted sexual intercourse. The acts of the offender in pulling down his own pants and the victim's pants were acts preparatory to the offence. That these acts alone constituted the attempted unlawful sexual intercourse was not a case put to the jury by either the Crown or the defence. The jury were instructed that acts merely preparatory to an offence were insufficient to constitute an attempt.
In sentencing Mr Wran, I must accept the jury's verdict, and I cannot presume they acted contrary to directions and found him guilty without finding facts sufficient to prove the elements of the offence.
To convict Mr Wran, the jury must have accepted Ruby's account as given in the recorded interview.
Moreover, there was other tendency evidence connected with a further count, count 5 on the indictment. That charge was dismissed by directed verdict because of the absence of one element of the offence, [2] but the evidence was admitted without objection as tendency evidence on the four counts that resulted in guilty verdicts. That evidence was that on 26 March 2019, some three months after Mr Wran had been removed from the home, at about 7.30pm Mr Wran was talking to Ruby on the Duo video chatting app. He was talking about his new mobile phone, and Ruby said she wanted a new phone like his. The following conversation occurred, which was overheard by Mrs Wran: "ACCUSED: If you want one of these, you know what I want. RUBY: No, what do you want, Daddy? ACCUSED: You know what I want. I want to fuck you. RUBY: No. That hurts too much. ACCUSED: It only hurts for a little while."
After the conversation, the offender showed his penis to the victim and began masturbating. Mrs Wran also saw the image of this on her daughter's phone. Mrs Wran then confronted the offender, disconnected the call, and blocked his number. After her mother's questioning, Ruby eventually told her about the four prior events. Mrs Wran then sent two strongly-worded accusatory texts to the offender in the following terms: "You dirty fucken dog I heard everything you said to Ruby and showed her your penis why she was in the bedroom..how dare you say to her you I no what I want I want to fuck you she said it hurts to much you only for a little bit..You fucken scum dog cunt..And you touched her before I hate your fucken guys you sick fucken dog..You deserve to be put away for ever. I HATE YOU..FUCKEN marred a child sex affender..ROT IN HELL".
And further: "How dare you tell Ruby you want to fuck her..Your a dirty fucken sick cunt..I hate your guts..I heard everything you said to her…your not getting away with it you sick fucken low life piece of shit…I hope you rot in hell…fucken touch my daughter I fucken hate your guts….Shouldn't of ever trusted you..your mother would be so proud of you maggot..no wander I didn't turn you on little girls do…I wasn't asleep I was listening to everything you said…Ruby didn't even no I was listening…fucken you sick bastard…"
The evidence contained no response from Mr Wran to these accusations at the time. In his police interview in late March 2019, Mr Wran said his wife was prone to wild accusations, though he did not assert he made any response to those accusations made on 26 March 2019. The lack of response and the lack of evidence of wild accusations was sought to be explained at trial by the asserted deletion of texts.
The jury verdicts indicate that Ruby's recorded account of the circumstances of the offences was accepted by the jury, and compelled the conclusion that Mr Wran did press his penis against his stepdaughter on the two occasions charged in counts 2 and 3. Accordingly, he must be sentenced on this basis.

OBJECTIVE SERIOUSNESS

The first conviction for aggravated indecent assault involves Mr Wran pulling down his ten-year-old stepdaughter's underpants. The level of assault is at the lower end of seriousness as there is no physical pain or threats (a matter of less significance in cases such as here where the offender is in authority over the victim), [3] and the offence only had limited touching and force. There was no genital touching and it was brief in duration so the degree of physical contact was low. [4] The victim rebuffed her stepfather and left the room unrestrained. He did direct her not to tell her mother.
Section 21A of the Crimes (Sentencing Procedure) Act 1999 lists certain aggravating factors that are to be taken into account in sentencing. A relevant aggravating factor is that the offence occurred in the home of the victim. That the offence involved the abuse of a position of trust and authority is not an element of the first offence and is another aggravating factor. The abuse of trust is more serious when the offender is a father or stepfather. Children in a family situation are virtually helpless against sexual attack by a male parent and have a right to be protected from this by the courts imposing salutary sentences. [5]
The first offence carries a maximum penalty of 10 years when the victim is under 16 years. Aggravating factors that are elements of the offence are not to be given additional regard. [6] One element is that the victim is under 16, whereas the victim here was well below that, age 10, and thus the extent that the victim's age is well below the maximum age for the offence is a matter that renders the offence more serious - the younger the child, the more serious the offence. [7] So does the age of the offender, 53 years, and the age disparity between them. [8] So does the inference I would draw beyond reasonable doubt that her stepfather, Mr Wran, was aware of the age of his stepdaughter. [9] So also is the fact that the victim, notwithstanding her age, was not a willing participant. [10] All these matters increase the seriousness of the offence.
The offender's record of previous convictions, particularly where this offence is a serious personal violence offence and he has a record of previous serious personal violence offences, is a circumstance of aggravation under s 21A(2)(d). The offender's record includes aggravated sexual assault in company, two counts of aggravated sexual assault with actual bodily harm, and aggravated robbery, the circumstances of which were set out in the judgment of the Court of Criminal Appeal in [deleted for publication].
The Crown tendered the Court of Criminal Appeal's sentence decision, which I allowed over objection. The judgment reveals the high level of seriousness and moral culpability in those previous offences, circumstances which led to the extended supervision order, apparently after the completion of the imposed sentence. The offender is not being sentenced for those previous offences, nor is the sentencing consideration of protection of the community to be assessed against those offences or the circumstance that the offender remains on an extended supervision order. They are not the offences before the Court for which he is to be sentenced. But the nature of his record, and in particular those offences, show that his record entitles him to no leniency, and the present offences are aggravated by the prior serious personal violence offences pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act.
There were no mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act. The theoretical possibility that the s 61M offence might have been able to be dealt with in the Local Court does not assist the offender, [11] nor, in view of the seriousness of his past offences, does the circumstance that his previous offences did not involve a child mitigate these offences.
I also take into account that the offender told the victim not to tell her mother, thus isolating the victim from her mother's assistance in respect of the emotional trauma of the offence, and allowing the future offences to occur.
As I indicated, the nature of the aggravated indecent assault in pulling down the child's pants is towards the lower end of the range of these types of assaults, but the aggravating features I have mentioned render the conduct more morally culpable. I would place it below the middle of the range.
The Crown urged upon the Court other aggravating factors, that the offender was on conditional liberty for an offence and that the emotional harm to the victim was substantial.
As to the first, the offender was subject to an extended supervision order under s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006. That does not mean that the offender was on conditional liberty in relation to an offence, at least so long as he was not on parole, a matter the Crown did not assert. [12] The supervision regulated his activities rather than allowed him conditional liberty in respect of an offence.
As to the second matter, I take into account the victim's impact statement of Ruby Jones. She recounts the significant fears she has, which I accept. Those fears appear to arise principally from her role in the offender being imprisoned rather than from the offences themselves.
The reports from Corrective Services prepared in respect of the extended supervision order to which Mr Wran was subject at the time of the offences do not support substantial damage to Ruby arising from the offences. Of course, long court experience has shown that offences of this nature can and often do cause long-term damage to the victim, and I make no finding contrary to that experience. That is an experience common to victims of this type of offence. I am not satisfied beyond reasonable doubt that the nature of the offences was aggravated by a level of substantial damage beyond that which would commonly accompany an offence of this type. For this reason, I do not regard the level of damage to the victim as a matter that operates to aggravate the objective seriousness of the first offence, or any of them.
The second and third counts involve attempted aggravated sexual intercourse, the most serious of the offences for which Mr Wran is to be sentenced. The aggravating component is the offender being in a position of authority. The circumstance that there was no sexual penetration in either offence, but each involved an attempt rather than a completion of the offence, is a matter that lessens their relative objective seriousness, as the majority of the Court of Criminal Appeal decided in Gregory John Walsh v R. [13] The extent to which it lessens the objective seriousness depends on the circumstances of the case, [14] and the circumstances of the offender pressing his penis in the genital region of the victim sufficient to hurt indicates that the difference between the attempt and the completion of sexual intercourse should not be overemphasised.
The aggravating matters or matters increasing the seriousness of the offence that I have already mentioned: the young age of the victim, at the younger end of the range of the age of children who are victims for this offence, the age difference between the offender and the victim, that the offences occurred in the victim's home, and the record of the offender, particularly the serious personal violence offences where these are serious personal violence offences, all have application here. Although Mr Wran being in a position of authority is an element of the offence, authority as a parent or stepparent is perhaps the highest level of authority, [15] contrasted with say a babysitter, [16] and that also reflects on the seriousness of the offence.
The third offence involved the offender kissing the victim as part of the assault, involved a repetition of the earlier attempted sexual intercourse, and involved more protest from the victim. Again, while the absence of sexual intercourse indicates the offences might fall within the lower part of the range of offences, the pain caused to the victim at the time and other aggravating features to which I have referred, places these offences towards the middle of the range of offences of this type, the second count not far below and the third count in the middle of the range.
Count 4 involves the aggravated inciting of a child between 10 and 16 years to do a sexual act. The aggravation is again the offender's position of authority. The particular sexual act was not identified in the circumstances of the offence. The sexual act, within the terms of s 66DE, is defined by s 61HC to include "an act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual". The circumstances of the offence did not produce any action of the victim towards the sexual act incited, nor did it involve any sexual act. As a sexual act being carried out is within the terms of s 66DE - it follows that these matters place the conduct of the offence at the lower end of the range. However, it is aggravated or rendered more serious by the factors I have earlier mentioned, by its nature as a demand by the offender rather than a request, and because the offender was at the time naked.
In these circumstances, although the act of the offence is again at the lower end of the range of offences under s 66DE, it is more serious and towards the middle of the range because of the aggravating features mentioned.

SUBJECTIVE CONSIDERATIONS

There is little that was placed before the Court by way of subjective considerations in favour of Mr Wran. The offender raised the issue of institutionalisation, but the time that Mr Wran has spent in custody for serious past offences should not reduce the appropriate level of penalty. [17]
Reference was also made to the continuance of institutionalisation when Mr Wran was subject to the extended supervision order. Without evidence, I would not conclude that being subject to an extended supervision order has an institutionalising effect any more than being on parole. In neither case is the offender subject to the constant demands of an institution. The circumstance that Mr Wran was placed in sole control of his young stepdaughter, and compelled to stay with her in the home for long hours with no ability to leave, when he has a history of very serious sexual violence is a matter that might seem, on its face, to be at least inappropriate, if not bizarre, particularly when Mrs Wran seems not to have been fully informed of his past. But I am not persuaded that it creates any greater effect of institutionalisation.
Nor is the extended supervision order to be taken into account as a mitigating factor. [18]
Mr Wran continued to maintain his innocence throughout the sentence hearing. As the Sentencing Assessment Report noted, he "did not accept responsibility for the offences". He cannot receive any leniency for remorse. The report also recorded that he was "unable to provide any insight" about the impact of his offence on the victim. He was assessed as "medium to high risk of reoffending" and there is no evidence to dispute that finding.
The report notes that Mr Wran's response to supervision was "somewhat stable" and that he had pursued employment opportunities. He was assessed as suitable for community service. Even with these matters, his prospects of rehabilitation must be guarded, if not low.
I take into account the effects of COVID-19 and the likelihood that restrictions in the custodial system will increase the burden of a significant prison sentence, as they have done in the past.
Mr Wran has served 639 days in custody referable to these offences. In addition, he has served 215 days in respect of a breach of the extended supervision order. The conduct in breach of that Order was, or included, the conduct in count 5 in the indictment, which is not a matter on which Mr Wran is being sentenced. However, that circumstance is connected with the present offences, and as both the Crown and the defence assert that this custodial period could be taken into account and part of it allowed, I propose to allow an additional 108 days or half the additional period. That means that the sentence would be backdated 747 days from today, 13 August 2021. Any sentence should thus date from 28 July 2019.
I have indicated the maximum sentence and the standard non‑parole periods, which are guideposts in sentencing. However, the utility of the standard non‑parole period of eight years, made applicable by s 54A of the Crimes (Sentencing Procedure) Act and the Crimes (Sentencing Procedure) Amendment Act 2007 at cl 10 in Sch 1 to an offence (that is, the first count) under s 61M in the middle of the range of objective seriousness, is of limited assistance since the maximum penalty is ten years and thus, an offence in the middle of the range might be expected to have a head sentence less than the standard non‑parole period provided, a matter that has been remarked upon by several decisions of the Court of Criminal Appeal. [19]
Further, the Crown urged that the standard non‑parole period of nine years is applicable to an offence under s 66C(2) of the Crimes Act, the offence for which the offender was found guilty in counts 2 and 3 of the indictment. But although s 66C(2) is listed in the table following s 54D of Crimes (Sentencing Procedure) Act, which specifies the standard non‑parole period, s 344A of the Crimes Act is not so specified. So although s 344A renders a person who attempts to commit an offence liable to the same penalty as provided for that offence, that is "subject to the Act" and the absence of a reference to s 344A in the table of standard non‑parole periods raises a question about the application of the standard non‑parole period to an attempt to commit a s 66C offence, the aggravated sexual intercourse with a child aged 10 to 14 years.
In DAC v R, [20] the Court of Criminal Appeal indicated that "it was not intended at that time to include attempt offences in the table except for the various manifestations of the offence of attempt murder", and a subsequent inquiry produced no amendment. Although the offence was different in that case, the principle seems to apply. The standard non‑parole period for the offence may provide some guidance for an offence in the middle of the range of seriousness, but I am not satisfied that Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act containing standard non‑parole periods has any direct application for the s 344A offences in counts 2 and 3.
As the offences all occurred within a period of approximately a month, involving the same victim, I think it appropriate that an aggregate sentence be imposed. [21] I am, in that event, required to report indicative sentences for each offence, [22] and, in count 1, because of the application of the standard non‑parole period, the minimum term or non‑parole period for that offence. [23]
Section 5 of the Crimes (Sentencing Procedure) Act requires that the Court only sentence an offender to imprisonment if it is satisfied, having considered all possible alternatives, that no other penalty is appropriate. I have done so, and this threshold is plainly satisfied. The offender did not contend otherwise.
Section 3A of the Crimes (Sentencing Procedure) Act identifies the purposes of sentencing as adequate punishment, general and specific deterrence, community protection, rehabilitation, accountability, denunciation, and recognition of harm. Because of the seriousness of the offences, rehabilitation, to the extent it occurs, will necessarily occur largely in custody. The other purposes of sentencing each have a significant role to play in the case of these offences and the circumstances of Mr Wran.
The community regards with abhorrence the sexual molestation of children. General deterrence is of great important in sentencing child sexual assault offenders, especially when the offender is in a position of trust to the victim. [24] Those who engage in this conduct must go to gaol for a long time, not just to punish them, but also to deter others who may be similarly inclined. [25] Such sentences reflect the Court's role in protecting young people from sexual attacks. In this regard, Mr Wran remains a significant risk to the community.
I was provided with some decisions for comparison.
In Bell v R, [26] the offender pleaded guilty to two offences of sexual intercourse without consent of a child aged 10 to 14 years in circumstances of aggravation, namely, that the victim had a cognitive impairment. The victim there was aged 12. In that case, the offender was 28, the offences occurred 3 months apart, and the second offence did not involve the use of a condom. The offender had significant subjective matters in his favour, [27] including genuine remorse and mental illness. The sentences, before the discount for the plea, of seven years and six months and nine years for the two offences, and the "substantial" [28] degree of accumulation after the discount, were held to be "manifestly excessive". The head sentences (which is a matter to which I will refer in all of the comparative cases I mention) before any discount were reduced to seven years and eight years, [29] with less accumulation, reducing the aggregate sentence which would equate to ten years without the discount. The offences were regarded as slightly below the middle of the range and in the middle of the range respectively. [30]
Here, the offender only repeatedly attempted the offence, and there was no penetration, but there was significant physical contact, without the use of a condom. There were factors of aggravation here and the subjective case is much weaker. I have assessed the level of counts 2 and 3, the most serious of the offences, to be at a similar level of objective seriousness.
In Dawkins v R, [31] the offender had 4 offences of aggravated sexual intercourse without consent with a person 10 to 14 years of age. The circumstance of aggravation was that the victim was under his authority. The offender was the babysitter, 21 years of age, and the victim aged 12 to 13 years. The offender had a "strong subjective case" [32] with a low risk of reoffending. Because of the lower degree of trust applicable to a babysitter compared to say a parent or teacher, the Court of Criminal Appeal did not regard it as open to an objective seriousness finding of "just slightly below the mid-range". [33] It imposed an aggregate sentence of five years. The indicative sentences before the discounts for plea and assistance ranged from six and a half to eight years.
I have considered other decisions in respect of the s 61M offence.
In Corby v R, [34] the offender was 39 years old with no previous offences. The victim was 14 and of limited intellectual capacity. The offences consisted of cuddling and kissing. This was assessed as lying at the bottom of the range of objective seriousness. The sentence before discount of 4 years [35] was reduced to 18 months. That sentence is of reduced assistance in the present case because of the lesser objective gravity than the first offence in this case.
In Hartley v R, [36] the offender was found guilty of aggravated indecent assault under s 61M. The offender was 47 years of age and the victim 13. The offender put his hand on the victim's leg, tried to pull down his pants, resisted the victim's attempt to escape, and "took hold of the complainant, bending him over the back of a lounge". The sentence imposed was three years.
In R v LS; R v MH, [37] a stepfather was sentenced to 3 years with a non‑parole period of 15 months after an early guilty plea on a s 61M(2) offence of aggravated indecent assault, which seemed to involve his erect penis being placed touching or near his infant stepdaughter's vagina, where an offence of disseminate child abuse material was also taken into account on the Form 1. The presence of a significant quantity of disseminate child abuse offences limits the utility of the sentencing decision in that case as guidance in this case.
In Ibbotson (a pseudonym) v R, [38] a case which concerned a s 61M(2) offence where the offender grandfather was aged 64 and the victim aged 8, where the grandfather rubbed the victim's vagina above and twice underneath clothing, an open-mouthed kiss, kissing and licking in the area of the victim's vagina, one evening and the following morning of a few minutes' duration in total. The indicative sentences ranged from three to five years' imprisonment for the vaginal contact offences, and an aggregate sentence of five years and six months' imprisonment was imposed after a 10% discount for a plea. That was an offence more serious than the s 61M offence in this case.
In Jurd v R, [39] another s 61M offence occurred when the offender was staying over at a friend's house where the victim was six years old. The offender removed the victim's "onesie" pyjamas, and began touching and kissing all over her body, including her genitalia. The offence was "comfortably in the mid‑range". [40] An appeal against the head sentence of seven years was dismissed.
In this case, the s 61M(2) offence of pulling down the victim's pants is conduct of lesser gravity.
Whilst I have considered these cases for some guidance, every case is different and the intuitive process of sentencing does not involve any strict comparison with a sentence in other cases.

TOTALITY

It is necessary also for the Court to consider the totality of the sentence to ensure that the aggregation is a just and appropriate measure of the total criminality involved. [41] Further, the severity of the sentence increases at a greater rate than the increase in the length of the sentence. [42] That is a reason why some degree of concurrency is appropriate. Questions of whether a total sentence is inappropriately crushing, produces hopelessness, and destroys any prospect of a future useful life, rehabilitation, and reform are to be considered. [43] This is not to provide any discount for multiple offences, but a reminder of the necessity to consider the overall sentence.
Conversely, the imposition of totally concurrent sentences would fail to acknowledge the separate harm done to the victim by the different acts of the offender. [44] If the criminality of one offence cannot be encompassed by the criminality of the other, a sentence should at least be partially cumulative so as to reflect the total criminality of the offences. [45] This principle is relevant to the assessment of the appropriate aggregate sentence.

CONCLUSION

In these circumstances, (recognising that for counts 2, 3 and 4 an indication of a non‑parole period might not be required) the indicative sentences I propose are as follows: 1. Count 1 - four years' imprisonment with three years' non-parole period. 2. Count 2 - eight years' imprisonment with six years' non-parole period. 3. Count 3 - eight years' and eight months' imprisonment with six years' and six months' non-parole period. 4. Count 4 - 2 years' imprisonment with 18 months' non-parole period.
An aggregate sentence of nine years' and eight months' imprisonment with seven years' and three months' non‑parole period should be imposed.

ORDERS

David Wran, you are, on the basis of the jury verdicts: 1. On count 1, convicted of aggravated indecent assault of a child under 16 years. 2. On count 2, convicted of attempting to have sexual intercourse with a child aged between 10 to 14 years in circumstances of aggravation, namely that the victim was under your authority. 3. On count 3, convicted of attempting to have sexual intercourse with a child aged between 10 to 14 years in circumstances of aggravation, namely that the victim was under your authority. 4. On count 4, convicted of inciting a child aged between 10 and 16 to carry out a sexual act towards you, in circumstances of aggravation, namely that the child was under your authority.
I impose an aggregate sentence of nine years and eight months' imprisonment, with a non-parole period of seven years and three months, to date from 27 July 2019. The period of imprisonment shall expire on 26 March 2029, and you shall be eligible for parole on 26 October 2026.

Endnotes

This is a pseudonym. As are all other names in this judgment.
R v Wran (a pseudonym) [2021] NSWDC 185.
BT v R [2010] NSWCCA 267 at [24].
R v PGM (2008) 187 A Crim R 152 at [31], Corby v R [2010] NSWCCA 146 at [72].
R v BJW (2000) 112 A Crim R 1 at [20]-[21].
Crimes (Sentencing Procedure) Act, s 21A(2).
R v KNL (2005) 154 A Crim R 268 at [42].
Corby at [77].
R v KNL at [42].
Cf Wakeling v R [2016] NSWCCA 33 at [47].
Corby at [94], R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 45-48 [76]-[90], R v Cage [2006] NSWCCA 304 at [31].
See Crimes (High Risk Offenders) Act, s 5I(2).
[2015] NSWCCA 83 at [14].
See e.g. Walsh ibid at [25].
See R v BTW (2000) 112 A Crim R 1 at [20]-[21].
See e.g. Dawkins v R [2018] NSWCCA 278 at [40].
See Decision restricted [2017] NSWCCA 60 at [109].
See Crimes (Sentencing Procedure) Act, s 24A.
Corby at [69]-[71], Hartley v R [2020] NSWCCA 330 at [36], Jurd v R [2020] NSWCCA 91 at [231], Hordern v R [2019] NSWCCA 138 at [2], cf BT v R at [41].
[2006] NSWCCA 265 at [10].
Crimes (Sentencing Procedure) Act, s 53A.
Crimes (Sentencing Procedure) Act, s 53A(2)(b).
Crimes (Sentencing Procedure) Act, s 54B.
R v BJW at [20].
R v Fisher (1989) 40 A Crim R 442, 445.
[2019] NSWCCA 251.
At [65].
At [61].
At [73].
At [17], [47].
[2018] NSWCCA 278.
At [24].
At [40].
[2010] NSWCCA 146.
At [40].
[2020] NSWCCA 330.
[2020] NSWCCA 148.
[2020] NSWCCA 92.
[2020] NSWCCA 91.
At [215].
Postiglione v The Queen (1997) HCA 26.
R v MAK, R v MSK [2006] NSWCCA 381 at [16].
MSK at [17]-[18].
Carlton v The Queen (2008) 189 A Crim R 332 at [122].
Franklin v R [2013] NSWCCA 122 at [44]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2022

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Judgment (9 paragraphs)

Parties

Cases Cited (18)