Wright, R. v

Factual and Procedural Background

The appellant, aged 45 at the time of the initial plea, was charged with two offences involving a child referred to as "C", aged 10. On 29 August 2023, the appellant pleaded guilty to sexual communication with a child under 16. Subsequently, on 8 August 2024, following a jury trial, the appellant was found guilty of sexual assault of a child under 13. Sentencing occurred on 8 October 2024, resulting in 28 months' imprisonment for the sexual assault and a concurrent 10 months' imprisonment for the communication offence, alongside a 20-year Sexual Harm Prevention Order.

The offending involved repeated inappropriate messages sent to C via WhatsApp and TikTok, and physical contact at a swimming pool involving lap-to-lap contact and touching over bathing suits. The appellant was known to C as an "uncle" figure within the family. The conduct was observed and intervened upon by witnesses. The appellant had a prior history of sexual offences and breaches of court orders.

The appellant appealed the sentence on grounds that it was manifestly excessive and should have been suspended or shorter.

Legal Issues Presented

1. Whether the sentence of 28 months' imprisonment for the sexual assault offence was manifestly excessive.
2. Whether the total sentence imposed should have been short enough to allow suspension.
3. Whether the sentence should have been suspended.
4. Appropriate categorisation of the sexual assault offence under the sentencing guidelines (Category 3A versus Category 3B or Category 2B).
5. Whether the sentencing judge erred in applying totality principles when imposing concurrent sentences.

Arguments of the Parties

Appellant's Arguments

• The sentence for count 1 (sexual assault) was manifestly excessive.
• The total sentence should have been sufficiently short to be suspended.
• The sentence should have been suspended given the circumstances.
• At the appeal hearing, the appellant argued that the offending was Category 3B rather than Category 3A, disputing the finding of abuse of trust or grooming.

Respondent's Arguments

• The categorisation of the sexual assault as Category 3A was appropriate and agreed upon by both parties at trial and in the Grounds of Appeal.
• The sentence reflected the serious aggravating factors, including prior convictions and breach of trust.
• The totality principle justified the concurrent sentence structure and the upward adjustment to reflect the communication offence as a serious aggravating factor.
• Immediate custody was appropriate due to the appellant's previous poor compliance and ongoing risk to children.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court began by confirming the applicability of the Sexual Offences (Amendment) Act 1992 to ensure anonymity of the victim. The appellant’s offences were categorised under the sentencing guidelines as Category 3A for the sexual assault and Category 2B for the communication offence, as agreed by all parties. The court considered the factual findings of the sentencing judge, including the sustained nature of the sexualised conduct over approximately ten minutes, the breach of trust arising from the appellant’s position as a responsible adult in loco parentis, and the presence of other children during the offending.

The court noted that the sentencing judge’s findings justified an upward adjustment within the Category 3A range and that the prior sexual convictions constituted a serious aggravating factor, warranting a sentence at the top of the category range. The communication offence was persistent and unresponsive to warnings, also justifying a sentence at the top of its range.

Regarding totality, the court explained that the sentencing judge appropriately treated the sexual assault as the lead offence and imposed a concurrent sentence for the communication offence, while factoring the communication offence as a serious aggravating factor in the overall sentencing. The court rejected the appellant’s contention that the sentence was outside the guidelines, emphasizing that the totality principle and the seriousness of both offences justified the sentence imposed.

The court further highlighted that the appellant’s previous poor compliance with suspended sentences and ongoing risk to children necessitated an immediate custodial sentence. The court concluded that although a slightly lower sentence might have been justifiable, the sentence passed was not manifestly excessive.

Holding and Implications

The appeal against sentence is DISMISSED.

The court upheld the sentencing judge’s decision, confirming the appropriateness of the sentence length and the custodial nature of the sentence. The appellant’s prior convictions and the sustained, serious nature of the offences justified the sentence imposed. No new legal precedent was established; the decision primarily affirms the application of sentencing guidelines, aggravating and mitigating factors, and the principle of totality in sentencing for multiple offences.