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[2005] NSWCCA 168
mixed. Leave to appeal granted and appeal allowed in part. The sentence on the charge of attempted sexual intercourse with a child under 10 was quashed and replaced with imprisonment for 10 years, commencing...
The Court held that the sentencing judge had been wrong to call McQueeney’s previous convictions an aggravating feature of the offences. Those convictions could still be considered for other sentencing purposes, including what they showed about his propensity to reoffend. The 10-year sentence for the attempted offence was not outside the proper sentencing range, given how far the attempt had progressed. However, the combined sentence was too long in its overall effect. The Court changed the commencement date of the 10-year sentence, while retaining its length and seven-year non-parole period.
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In Regina v McQueeney [2005] NSWCCA 168, the New South Wales Court of Criminal Appeal considered an application for leave to appeal against sentence. The bench comprised Grove J, Howie J and Latham J. Grove J and Howie J agreed with Latham J, whose reasons set out the Court’s analysis.
No linked legislation citations have been extracted yet.
McQueeney pleaded guilty to attempted sexual intercourse with a child under 10, contrary to s 66B of the Crimes Act 1900 (NSW), and aggravated indecent assault, contrary to s 61M(2). The attempt carried a maximum penalty of 25 years’ imprisonment. Two further aggravated indecent assaults, and an aggravated act of indecency, were taken into account on Forms 1 in connection with the indicted offences [3]–[4].
The offending involved JB and JW, nine-year-old stepbrothers. McQueeney, aged 62, had begun seasonal work on their family’s farm in May 2003. He bought the boys gifts and took them on outings. On an overnight stay in his truck, McQueeney attempted to insert his penis into JW’s anus after JW’s underpants had been removed. The Court records that JW awoke during the incident [8]. On a separate journey, McQueeney placed his hand inside JB’s boxer shorts and masturbated his penis. That conduct was the subject of the aggravated indecent assault charge [9]. Further incidents were taken into account on Forms 1 [10]–[11].
The District Court imposed four years’ imprisonment with a three-year non-parole period for aggravated indecent assault, commencing 2 September 2003. It imposed 10 years’ imprisonment with a seven-year non-parole period for attempted sexual intercourse, commencing 2 March 2005. The combined sentence was described as an effective head sentence of 11½ years and a non-parole period of 8½ years [5]. McQueeney challenged the attempted-offence sentence and the effective sentence, arguing that the offending did not warrant the sentence imposed and that the accumulation was excessive [6].
The Court granted leave and allowed the appeal in part. It quashed the sentence for attempted sexual intercourse and substituted a 10-year sentence commencing 2 March 2004, with a seven-year non-parole period commencing on the same date [29]. The head sentence and non-parole period remained seven and ten years respectively; the substituted commencement date changed the sentence’s relationship with the sentence for aggravated indecent assault.
The Court dealt first with the argument that the sentencing judge had treated McQueeney’s prior criminal convictions as an aggravating feature of the offences. The sentencing remarks described convictions from several Australian jurisdictions, including prior sexual offences against boys. The appeal record included material indicating similarities between some earlier offences and the present offending, including incidents in the rear of McQueeney’s truck after he had befriended boys and taken them to places in the course of his travels [12]–[14].
Latham J explained the distinction between aggravating the offence and considering an offender’s history in deciding the appropriate sentence. Under the principle stated in Veen v The Queen [No 2], an offender’s antecedent criminal history cannot justify a penalty disproportionate to the gravity of the instant offence. It may nevertheless show whether the offence was an aberration or part of continuing disobedience of the law, illuminate culpability, demonstrate a dangerous propensity, or bear on deterrence and protection of the community [17]. The Court said that this common-law principle was preserved for the purposes of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW), citing R v Wickham, R v Johnson and R v Shankley [18].
The sentencing judge had listed the applicant’s prior convictions for sexual abuse of children among the aggravating features [14]. Latham J said it was “strictly incorrect” to refer to criminal history as an aggravating feature of the offence for the purposes of s 21A [18]. But identifying that error did not resolve whether the sentence was excessive. The Court considered the separate relevance of McQueeney’s history under Veen. His long record of recidivism demonstrated a dangerous propensity and heightened the importance of retribution, deterrence and protection of the community [18]–[19]. Latham J was not persuaded that the error had produced a sentence more severe than was warranted when those matters were properly taken into account [19].
The Court then considered whether the 10-year sentence for the attempt was manifestly excessive. The applicant relied in part on sentences in other cases and on statistics concerning completed offences under s 66A. Latham J regarded those comparisons as of limited assistance. Some cited cases concerned offences committed when the maximum penalty was 20 years, some involved different forms of sexual activity, and some were Crown appeals, where double-jeopardy considerations limited the guidance available [21]. The Court also noted that some comparator cases involved stale offending, whereas McQueeney’s offending was relatively recent [22]. The judgment stresses the need to appraise the particular offender’s criminality rather than substitute statistical comparison for that assessment [23].
The fact that the offence was an attempt was important, but it did not mean the conduct was necessarily of low gravity. Citing R v Taouk, the Court stated that sentencing for an attempt involves weighing the seriousness of the intended consequences against the real prospects of achieving them in the circumstances [25]. Here, JW’s underpants had been removed, McQueeney was holding him by the shoulders and was actively engaged in the attempt. The Court considered that the substantive offence might well have succeeded but for JW waking [26]. In those circumstances, the Court was not persuaded that the 10-year sentence was outside the sentencing discretion, even though it could be regarded as towards the top of the range [26].
The appeal succeeded on the totality of the sentences. The Court considered that the offending comprised six offences against two complainants over about three months. It described that period as relatively short compared with cases of familial sexual abuse extending over years [28]. Some accumulation was accepted as necessary to reflect the separate complainants, but Latham J considered six months sufficient, particularly because the offences against JW were less serious than those against JB [27]–[28]. The Court therefore adjusted the commencement date of the sentence for the attempted offence [29].
This judgment applies, rather than purports to create, the distinction between prior criminal history as an aggravating feature of an offence and prior history as relevant information about an offender. The Court’s stated position is that it is “strictly incorrect” to label criminal history itself as an aggravating feature under s 21A(2)(d) [18]. That does not make the history irrelevant. Under the Veen principle recited in the judgment, it may inform the sentencing assessment where it sheds light on culpability, continuing law-breaking, dangerous propensity, deterrence or protection of the community [17]–[19].
The judgment also applies an established approach to attempts: a sentencing court considers both the gravity of the intended offence and the likelihood that the attempt would have achieved its intended consequences [25]. McQueeney’s conduct had progressed sufficiently far that the Court accepted the sentencing judge’s assessment of a substantial prospect of completion [26].
Finally, the decision illustrates totality in sentencing. The appeal court did not reduce the individual 10-year head sentence for the attempted offence because it considered it outside the proper range. Instead, it altered the sentence’s commencement date to reduce the overall accumulation, while leaving the sentence and non-parole period otherwise as ordered [26]–[29]. The judgment provides this application to the facts before it; it does not set a universal accumulation period for offending against multiple complainants.
At [17], the Court set out the Veen principle: criminal history cannot produce a penalty out of proportion to the present offence, but may show whether the present offence reflects a continuing pattern and may bear on culpability, propensity, deterrence and community protection. In plain English, previous convictions are not a reason to inflate the seriousness of the current offence itself, but they can still matter to the overall sentencing assessment for recognised purposes.
At [18], the Court said it was “strictly incorrect” to refer to criminal history as an aggravating feature of the offence under s 21A. This is the judgment’s clearest statement about the statutory characterisation of prior convictions. Its immediate context matters: the Court did not say the history had to be ignored. It said the sentencing judge’s description was wrong, then considered whether the history was relevant in the separate way identified in Veen [18]–[19].
At [19], Latham J concluded that the history of recidivism demonstrated a “dangerous propensity” and called for a penalty above what might have seemed appropriate without those circumstances. In plain English, the error in the label did not automatically make the sentence excessive, because the same history could properly inform other sentencing considerations.
At [25]–[26], the Court explained how to assess an attempted offence. The court considers the seriousness of what the offender intended and the real prospects of completing it. Here, the attempted penetration had progressed substantially; the complainant’s underpants had been removed and the applicant was actively engaged in the attempt. The Court considered that the attempt might have succeeded if JW had not awoken.
At [28], the Court held that six months’ accumulation was sufficient on these facts to account for offending against more than one victim. The passage is tied to the number and relative seriousness of the offences and the short period of offending. It should not be read as fixing a standard accumulation for other cases.
The judgment is especially relevant where sentencing reasons describe previous convictions as an aggravating feature under s 21A(2)(d), rather than explaining how the offender’s history bears on recognised sentencing considerations. It highlights the need to distinguish the gravity of the current offence from what an offender’s record may show about culpability, propensity, deterrence or protection of the community [17]–[19].
It is also relevant when a court sentences an attempt and must assess how close the conduct came to completing the intended offence. The particular facts here involved substantial progress towards penetration, and the victim waking interrupted the conduct [25]–[26]. The judgment does not suggest that every attempt with serious intended consequences should receive the same sentence; it calls for an assessment of the circumstances of the individual attempt.
The decision may assist when a sentence appeal challenges the combined effect of sentences for separate offences against multiple complainants. Relevant features in this case included six offences, two victims, differing seriousness between the offences, a period of about three months and the individual sentences imposed [27]–[28]. The Court’s conclusion that six months’ accumulation was sufficient depends on those features.
The judgment also cautions against relying on raw statistics or superficial comparisons with other sentencing decisions. Differences in maximum penalties, the type of sexual conduct, the age of offending and whether the appeal was brought by the Crown affected the usefulness of the comparisons advanced in this case [20]–[23].
The supplied judgment does not contain decisions issued after 2 May 2005, and no later case-law material has been provided here. It is therefore not possible, from this source alone, to say how later courts have treated McQueeney, whether they have followed or distinguished it, or how its statements have developed.
The judgment itself cites authorities that pre-date it. It relies on Veen v The Queen [No 2] for the treatment of antecedent criminal history [17]–[19], and cites R v Wickham, R v Johnson and R v Shankley concerning the relationship between that common-law principle and s 21A(2)(d) [18]. It uses R v Taouk for the approach to sentencing attempts [25], and considers several decisions about sexual-offence sentences as comparators [21]–[22]. Those citations show the authorities the Court used in 2005, not later treatment of McQueeney.
The judgment does not specify how the distinction it draws should be expressed in every set of sentencing remarks. It says that describing prior convictions as an aggravating feature under s 21A(2)(d) was incorrect, while also finding that the applicant’s record could inform sentence under Veen [17]–[19]. The precise relevance and weight of a criminal history will therefore depend on the facts and the sentencing purposes identified in a particular case.
The decision also does not establish a general numerical method for sentencing attempts. It identifies the seriousness of the intended consequences and the real prospects of achieving them as considerations, then applies them to the progress of this attempt [25]–[26]. It does not provide a formula for translating those considerations into a sentence.
Nor does McQueeney prescribe a fixed amount of accumulation for offences against multiple victims. Its six-month figure arose from the Court’s assessment of six offences over about three months, the difference in seriousness between the offending against the two complainants, and the sentence structure before it [27]–[29]. The judgment does not decide how those considerations would apply where the offences, victims, time period or existing sentences differ.
Lastly, the source contains no subsequent cases or statutory developments. Any account of the current state of the law, or of later judicial treatment of the decision, would require legal sources beyond the judgment provided.
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CITATION: Regina v McQueeney [2005] NSWCCA 168
JUDGMENT OF: Grove J at 1; Howie J at 2; Latham J at 3
DECISION: 1. Leave to appeal granted, appeal allowed in part.; 2. Sentence on charge of Attempt Sexual Intercourse with Child under 10, quashed. In lieu I would impose a sentence of 10 years to commence on 2nd March 2004 expiring 1st March 2014, non-parole period of 7 years to commence 2nd March 2004, expiring 1st March 2011.
CATCHWORDS: CRIMINAL LAW - Application for leave to appeal against severity of sentence - attempt sexual intercourse with child under 10 - Veen considerations.
Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Ibbs v The Queen (1987) 163 CLR 447 R v Booker unreported NSW CCA 21/2/1996 R v Campbell [2001] NSW CCA 89 R v CDH [2002] NSW CCA 103 R v Davis [1999] NSW CCA 15 R v Hollis [2002] NSW CCA 306 CASES CITED: R v Johnson [2004] NSW CCA 76 R v Lupton [2003] NSW CCA 200 R v Selsby [2004] NSW CCA 381 R v Shankley [2003] NSW CCA 253 R v Taouk [1992] A Crim R 387 Veen v The Queen [No 2] (1988) 164 CLR 465 R v Wickham [2004] NSW CCA 193
A Haesler SC Applicant COUNSEL: V Lydiard Respondent
S E O'Connor Applicant SOLICITORS: S Kavanagh Respondent
IN THE COURT OF CRIMINAL APPEAL 2004/3319
GROVE J HOWIE J LATHAM J
2 MAY 2005 REGINA v IAN FRANCIS MCQUEENEY Judgment 1 GROVE J: I agree with Latham J. 2 HOWIE J: I agree with Latham J. 3 LATHAM J: The applicant seeks leave to appeal against a sentence imposed by Judge Neild at Gosford District Court in respect of one count of attempted sexual intercourse with a child under 10 pursuant to s 66B of the Crimes Act. That offence carries a maximum penalty of 25 years imprisonment. The applicant requested that two further offences of aggravated indecent assault pursuant to s 61M(2) be taken into account on a Form 1. Each of those offences carry a maximum penalty of 10 years imprisonment. 4 The applicant pleaded guilty on 11 March 2004 at the District Court to an indictment containing two counts, count one being the offence of attempt sexual intercourse, count two being an offence of aggravated indecent assault. The applicant requested that a further offence of aggravated indecent assault and an offence of aggravated act of indecency be taken into account on a Form 1 when being sentenced for the aggravated indecent assault. The offence of attempt sexual intercourse and the further offences taken into account on the Form 1 in respect of that offence concerned a complainant JB aged 9. The aggravated indecent assault on indictment and the further offences on the Form 1 in relation to that offence concerned complainant JW also aged 9. 5 On 25th June 2004 his Honour imposed a sentence of 4 years imprisonment with a non-parole period of 3 years to date from 2nd September 2003 in respect of the aggravated indecent assault offence (count 2 on the indictment). His Honour then imposed a sentence of 10 years imprisonment with a non-parole period of 7 years to date from 2nd March 2005 in respect of the attempt sexual intercourse offence (count 1 on the indictment). The effective head sentence was thus one of 11 ½ years with a non-parole period of 8 1/2 years. 6 The applicant maintains that the objective circumstances of the offence of attempted sexual intercourse do not warrant a sentence of 10 years imprisonment and that the partial accumulation of that sentence upon the sentence for the aggravated indecent assault has resulted in an effective sentence which is manifestly excessive in all the circumstances. 7 In that respect there is no specific challenge made to the sentence imposed for the aggravated indecent assault offence save for the following alleged error, that is that his Honour erred in treating the applicant's prior criminal convictions for offences of a sexual nature against children as an aggravating feature of the offences. However, as I understand the applicant's submissions, the asserted error has led his Honour to impose a sentence in excess of that warranted by law in respect of the attempt sexual intercourse offence, whilst not affecting the sentence passed in respect of the offence of aggravated indecent assault in the same manner. 8 The facts giving rise to the offences are summarised in the course of the Crown's submissions on this appeal. On 27th May 2003 the applicant commenced employment as a seasonal fruit picker on a farm at Somersby owned by the family of JW and JB both of whom were 9 years old at the time and step brothers. The applicant was 62 years of age. He camped in his truck which was parked on the farm whilst carrying out various labouring jobs. Over a period of time he bought JB and JW gifts and took them on various outings. On one occasions between 27th May and 17th August 2003 both JW and JB spent the night with the applicant in his truck. The applicant slept between the boys on a mattress in the truck. As JB was trying to go to sleep the applicant was holding JW by the shoulders whilst thrusting the front of his body on the back of JW's body. JW had his clothes on at the time (From 1 offence re count 1). Later during that evening JW was awoken by the applicant and found his underpants down around his ankles. The applicant was holding JW's shoulders whilst he was lying on his side. The applicant attempted to insert his penis into JW's anus whilst thrusting the front of his body on the back of JW's body. It was this latter incident which gave rise to count 1 on the indictment, the act of attempted sexual intercourse with a child under 10. 9 On a separate occasion between 27 May and 17th August 203 the applicant travelled with JB to Newcastle. In the course of the journey the applicant placed his hand on the inside of JB's boxer shorts and masturbated his penis for approximately 10 minutes. This activity was the subject of count 2 on the Indictment being the aggravated indecent assault offence. 10 On a further occasion between the 27th May and 16th August 2003 the applicant incited JB to touch the applicant's penis through the unlined pocket of the applicant's shorts (Form 1 offence re count 2). 11 On 16th August 2003 the applicant left the property following a confrontation with the complainants' family. On 2nd September 2003 the applicant attended Leeton police station and participated in an interview wherein he admitted that on an occasion when the complainants stayed overnight in the back of his truck he had placed his hand inside JW's pants and touched his penis and that he had also placed his hand inside JB's pants and touched his penis. These incidents also found expression on the Form 1 documents. 12 It is convenient to deal firstly with the applicant's contention that his Honour erred in treating the applicant's prior criminal record as an aggravating feature of the offences. In the course of his Honour's remarks on sentence his Honour deals sequentially with the offender' age, his background and upbringing, his education and employment, his marital status, his character and the offences themselves. Of particular relevance to the applicant's complaint on this appeal are the remarks appearing under the heading "the offender's character" and "the offences themselves". In respect of the offender's character his Honour canvassed at some length the applicant's criminal history in Tasmania, Queensland, Victoria and New South Wales. His Honour noted that the applicant had been dealt with for 40 offences in Tasmania, 14 in New South Wales, 3 in Queensland and 2 in Victoria. The following passage appears from page 6 of the remarks on sentence: "Of the 40 offences dealt with in Tasmania, 2 were indecent practice between male persons dealt with on 22 August 1958 when the offender was 17 years and 7 months of age. Of the 14 offences dealt with in New South Wales, 1 was indecent assault on a male person committed during August 1969 when the offender was aged 28 years, 7 months, 3 were indecent assault on a male person and 1 was assault upon a male person with intent to commit buggery committed during June 1973 when the offender was aged 32 years and 5 months. Of the 3 offences dealt with in Queensland, 1 was aggravated assault on a child under the age of 17 years committed on 9th June 1988 when the offender was aged 47 years and 5 months. Of the 2 offences dealt with in Victoria both were indecent assault dealt with on 12th January 1998 when the offender was aged 57 years." 13 There was material before his Honour on sentence which established that, of these convictions, those recorded in New South Wales and Queensland concerned sexual assaults upon boys between the ages of 12 and 15 years. Moreover, in relation to the New South Wales offences there was an alarming similarity between the commission of those offences and the offences with which his Honour was dealing. The prior offences all occurred in the rear of the applicant's truck after he had befriended the relevant boys and taken them to various locations in the course of his travels. 14 It was in this context that his Honour came to deal with the objective gravity of the offences. His Honour listed the aggravating features of the offences at page 7 of his remarks on sentence. In particular his Honour referred to the fact that the offences were planned, the fact that the offences involved an abuse of trust in that the boys were in the care of the applicant at the relevant time and that the applicant had convictions "for offences of sexual abuse of children". His Honour then went on to refer to a number of mitigating factors. 15 The applicant's complaint on this ground assumes that his Honour was referring to those aggravating and mitigating factors set out under s 21A of the Crimes (Sentencing Procedure) Act, although his Honour does not expressly refer to that provision at this point in his remarks. Some discussion in relation to the aggravating and mitigating features appears in the course of submissions by the applicant's then legal representative and the Crown prosecutor on 16th June 2004. It was the applicant's then legal representative who took his Honour to s 21 A in the following terms: "It is clear of course that the aggravating factors referred to under s 21A are virtually in abundance against him, being the previous convictions plus these further matters, beyond 1973 and even continuing until relatively recent times." 16 Shortly thereafter the applicant's legal representative refers his Honour to s 21A (d) (g) (d) and (l). In response to these submissions, the Crown prosecutor also refers to the aggravating factor (d) as one available to his Honour. The Crown prosecutor also adopts the submissions of the applicant's legal representative with respect to (g), (k) and (n). Fortunately, the Crown prosecutor acknowledges that the aggravating factor (l) is one already encompassed by the ingredients of the offence. 17 It is trite to observe that "the antecedent criminal history of an offender is a factor, which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight to lead to the imposition of a penalty which is disproportionate to the gravity of the … offence. …The antecedent criminal history is relevant however to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." Veen v The Queen [No 2] (1988) 164 CLR 465 at 477. 18 The above statement of the Common Law is one which is preserved for the purposes of s 21A (2) (d): see R v Wickham [2004] NSW CCA 193, R v Johnson [2004] NSW CCA 76 and R v Shankley [2003] NSW CCA 253. It is therefore strictly incorrect for a sentencing Judge to refer to an offender's criminal history as an aggravating feature of the offence for the purposes of s 21A of the Crimes (Sentencing Procedure) Act. It would appear that his Honour has fallen foul of that principle. It was perhaps understandable in circumstances where his Honour was inadvertently led into error by both the applicant's legal representative and the Crown prosecutor. However it does not follow that the sentence imposed by his Honour for the offence of attempt sexual intercourse is disproportionate to the gravity of the offence, given that the antecedent criminal history considerably heightened the significance of retribution, deterrence and the protection of society in the formulation of an appropriate penalty. 19 The applicant's long history of recidivism, demonstrating as it does a "dangerous propensity", called for the imposition of a penalty in excess of that which may have seemed appropriate in the absence of the Veen circumstances. I am not persuaded that if there was error of the kind identified by the applicant, it resulted in a sentence of greater severity than was in any event warranted by the need to reflect the particular relevance of the applicant's antecedent criminal history. 20 I turn to the ground of appeal claiming that the sentence was manifestly excessive. As noted above no issue is taken with the sentence of 4 years imprisonment imposed in respect of the aggravated indecent assault offence. The principal thrust of the applicant's submission on this ground is that the sentencing Judge commenced at a 13 year starting point for the offence of attempt sexual intercourse of a child under 10, given the discount of 25% allowed for the plea of guilty. The applicant points to the paucity of examples of sentences imposed under s 66B of the Crimes Act in recent years and seeks to call in aid the statistics available in relation to offences under s 66A of the Crimes Act. The applicant argues that a 10 year sentence for an offence under s 66A is "extremely rare" and cites a number of specific decisions of this Court wherein offenders convicted of completed acts of sexual intercourse of children under 10 received significantly lesser sentences for offences of significantly greater objective gravity. 21 As to this analysis by the applicant, a number of considerations render it of dubious assistance. The decisions of Hollis [2002] NSW CCA 306, Booker, unreported NSW CCA 21st February 1996, Campbell [2001] NSW CCA 89, CDH [2002] NSW CCA 103 and Lupton [2003] NSW CCA 200 were all instances of sexual intercourse with a child under 10 at a time when that offence carried a maximum penalty of 20 years imprisonment. The decisions of Selsby [2004] NSW CCA 381 and Booker were Crown appeals from which little guidance can be obtained given the principle of double jeopardy which applied in each of those cases. Moreover, the range of sexual activity encompassed by the definition of sexual intercourse for the purposes of all of these cases renders any direct comparison with the instant matter inappropriate. The decisions of Selby, Campbell, CDH and LTP related to various acts of sexual intercourse including fellatio, cunnilingus and digital penetration of a female. This Court in Davis [1999] NSW CCA 15 drew attention to the decision of the High Court in Ibbs v The Queen (1987) 163 CLR 447 in the following terms: "In Ibbs v The Queen the High Court rejected the proposition that each kind of sexual penetration as defined in the section there under consideration was to be regarded as neither more nor les heinous than another. The Court said that such a proposition cannot be accepted. It appears to me that any other view would beggar common sense and that penal/vaginal penetration of a child is significantly more serious than many of the other forms of conduct encompassed within s 66A." 22 Moreover, many of the decisions referred to by the applicant's Counsel related to sexual offences which might well be regarded as stale, thereby affecting the length of the ultimate sentences imposed upon the offenders. By way of contrast, the applicant was being sentenced for relatively recent offences, of which one was an attempt of the more serious form of conduct within the definition of sexual intercourse for the purposes of s 66B. 23 The applicant's appeal to statistics and to the sentences imposed in a number of other cases coming before this Court seeks to avoid the very exercise with which his Honour was engaged in the Court below, that is, an appraisal of the criminality of this applicant. 24 The applicant concedes that the offences were serious in that they involved two separate complainants and that a degree of premeditation and planning was evident in the commission of the offences. Nor is any objection taken to his Honour's assessment of the prospects of the applicant's rehabilitation being somewhat dim. 25 At the end of the day, his Honour was dealing with the applicant for an attempt rather than the substantive offence. The approach to sentencing for an attempted substantive offence was expressed by this Court in Taouk [1992] A Crim R 387 as follows: "There is clearly an interrelationship between the seriousness of the intended consequences and the real prospects of having achieved them and that relationship has to be weighed in each case in the light of all the circumstances." 26 In those circumstances his Honour's evaluation of the objective gravity of the offence required his Honour to consider that the substantive offence was not completed and the prospect that the attempt, if not interrupted, would have succeeded. On the facts before him his Honour was entitled to conclude that the substantive offence may well have succeeded but for the fact that the complainant awoke. The applicant had progressed a considerable way towards actual penetration. The boy's underwear had been removed and the applicant was holding the boy by the shoulders. The applicant was actively engaged in the attempt. Given these features of the offence and the gravity of the offence which was attempted, I am not persuaded that his Honour imposed a sentence in respect of this offence which was outside the range of his sentencing discretion. It may well be regarded as a sentence towards the top of the range, but that is insufficient to attract the intervention of this Court. 27 There remains the question whether the sentence imposed upon the applicant following the partial accumulation of the sentence for the attempt sexual intercourse offence upon the sentence for the aggravated indecent assault is manifestly excessive in all the circumstances. Given the aggravation of each of the two offences on indictment by further offences on a Form 1, the totality of the applicant's criminality was of a significant order. The applicant concedes that some accumulation was necessary in order to reflect the commission of offences upon two separate complainants, but argues that the accumulation of the sentences to the extent of 18 months has resulted in an effective head sentence which was manifestly excessive. 28 I am persuaded that there is some merit in the applicant's proposition. The applicant's criminality is represented by the commission of 6 offences against two separate complainants over a period of some three months. This was a relatively short period of offending when compared with cases of familial sexual abuse, often extending over years. In my opinion an accumulation to the extent of six months is sufficient to account for the applicant's abuse of more than one victim, particularly in circumstance where the offences against JW were of a lesser order than those against JB. There being no ground of appeal relating to the proportion between the head sentence and non-parole period, I would not disturb that aspect of the sentences imposed on each offence. 29 Accordingly, I would propose the following orders:-
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.
Regina
McQueeney
(1987) 163 CLR 447
(1988) 164 CLR 465
Leave to appeal granted and appeal allowed in part. The sentence on the charge of attempted sexual intercourse with a child under 10 was quashed and replaced with imprisonment for 10 years, commencing 2 March 2004 and expiring 1 March 2014, with a non-parole period of 7 years, commencing 2 March 2004 and expiring 1 March 2011.