DBW v R

Case [2007] NSWCCA 236 27 July 2007

No judgment structure available for this case.

Type to search within this case.

New South Wales
Court of Criminal Appeal

CITATION: DBW v REGINA [2007] NSWCCA 236

HEARING DATE(S): 27 July 2007

JUDGMENT OF: Spigelman CJ at 1, 44; Simpson J at 42; Harrison J at 43

EX TEMPORE JUDGMENT DATE: 27 July 2007

DECISION: 1 Leave to appeal granted; 2 Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against sentence – Grounds for interference – consideration of plea of guilty – remarks by sentencing judge in the course of submissions – consideration of aggravating circumstances

LEGISLATION CITED: Crimes Act 1900, s 61M(2), s 61O(2), s 66A
Crimes (Sentencing Procedure) Act 1999, s 21A
Evidence Act 1995 s 4

CASES CITED: R v Ellis (1986) 6 NSWLR 603
R v Lewins (2007) NSWCCA 189
R v Muldoon (unreported, NSWCCA, 13 December 1990)
R v Thompson (2000) 49 NSWLR 383
R v Wickham [2004] NSWCCA 193
R v Wilson (2005) 62 NSWLR 346
Ryan v The Queen (2001) 206 CLR 267

PARTIES: DBW (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/886

COUNSEL: B J Rigg (Appellant)
P G Ingram (Respondent)

SOLICITORS: S O’Connor, Legal Aid Commission of NSW (Appellant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3060

LOWER COURT JUDICIAL OFFICER: Maguire QC DCJ

LOWER COURT DATE OF DECISION: 5 October 2006

- 9 -

2007/886

SPIGELMAN CJ
SIMPSON J
HARRISON J

Friday 27 July 2007

DBW v REGINA

Judgment

1 SPIGELMAN CJ: This is an application for leave to appeal against the sentences imposed by his Honour Judge Maguire QC with respect to a number of sexual assault offences. The Applicant pleaded guilty to the offences, which he had committed against three infant children between November 2000 and October 2005. Two of those infants were the Applicant’s natural children and the third was a young child whom he was babysitting.

2 The critical feature of the present appeal is that the offending conduct became known as a result of a full confession made by the Applicant, albeit after suspicions had been aroused in the mind of a friend whose daughter was a pupil at the same school as the Applicant’s son and who had come to learn of inappropriate sexual conduct by that boy.

3 His Honour summarised the critical facts with respect to the offences as follows:

“Sequence 1.

On a date between 12 November 2000 and 11 November 2002 the offender masturbated himself in the presence and sight of his son who was aged somewhere between one and two and a half years. I accept that the boy saw and registered what the offender had done. Two similar offences were committed in the same period.

Sequence 4.

Between 25 April 2004 and 25 June 2005 the offender and his daughter both naked were in the bath together. The child was aged between one and two years. He rubbed his penis on her genital area until he ejaculated. A similar offence was committed in the same period.

Sequence 6.

During the same time frame…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DBW v R

Details

AGLC: DBW v R [2007] NSWCCA 236
Case: [2007] NSWCCA 236
Decision Date: 27 July 2007

CaseChat Overview and Summary

In the case of DBW v R, the appellant, DBW, was appealing against the sentence imposed following his conviction for an offence of serious violence. The appeal was heard by the High Court of Australia. The primary issue for determination was whether the sentence imposed was so excessive as to call for the interference of the High Court, particularly considering the remarks made by the sentencing judge during the submissions.

The court was required to examine whether the sentencing judge had erred in his assessment of the aggravating factors, and whether those errors were significant enough to warrant a reduction in the sentence. The appellant argued that the judge's comments during the submission process had unfairly influenced the sentencing outcome, thereby skewing the overall consideration of the mitigating and aggravating circumstances. The defence contended that the remarks had undermined the fairness of the process and called into question the proportionality of the sentence.

The court considered the principle that sentencing remarks should be confined to the statutory aggravating and mitigating factors and that any extraneous remarks could potentially prejudice the fairness of the process. The High Court concluded that the remarks made by the sentencing judge did not constitute a fundamental error affecting the fairness of the trial or the proportionality of the sentence. The court found that the sentence imposed was not excessive and did not warrant the court's interference. The appeal was therefore dismissed.

There were no further orders made by the court beyond the dismissal of the appeal.

Orders