GW v R

Case [2018] NSWCCA 79 2 May 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GW v R [2018] NSWCCA 79
Hearing dates: 16 April 2018
Date of orders: 02 May 2018
Decision date: 02 May 2018
Before: Hoeben CJ at CL at [1];
Fullerton J at [2];
Davies J at [53]
Decision:
1. Leave to appeal is granted.
2. The appeal is dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – applicant entered pleas of guilty to 29 offences contrary to ss 61J(1), 61M(1), 91G(1)(a) and 91H(2) of the Crimes Act 1900 (NSW) – whether the sentence imposed was manifestly excessive.
Legislation Cited: Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 61M(2), 91G(1)(a), 91H(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Weapons Prohibition Act 1998 (NSW), s 7(1)
Cases Cited: DG v R [2017] NSWCCA 139
DV v R [2017] NSWCCA 276
Faehringer v R [2017] NSWCCA 248
Hughes v R [2018] NSWCCA 2
JL v R [2014] NSWCCA 130
Krivosic v R [2017] NSWCCA 167
Obeid v R [2017] NSWCCA 221
Vandeventer v R [2013] NSWCCA 33
Category: Principal judgment
Parties: GW (Applicant)
The Crown (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
B Hatfield (Crown)
Solicitors:
Ross Hill and Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/115474
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

5 July 2017

Before:

Buscombe DCJ

File Number(s):

2016/115474

Judgment

HOEBEN CJ at CL: I agree with Fullerton J and the orders which she proposes.
FULLERTON J: The applicant seeks leave pursuant s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal an aggregate sentence imposed by Buscombe DCJ on 5 July 2017. The sole ground of appeal is the contention that the aggregate sentence is manifestly excessive.

The proceedings on sentence

On 22 June 2017 the applicant confirmed pleas of guilty to 29 offences entered in the Local Court on 8 March 2017 as follows:

Seven counts of aggravated sexual intercourse with SK, being a child under the age of 16 years, contrary to s 61J(1) of the Crimes Act 1900 (NSW);

Eight counts of aggravated indecent assault upon SK, being a child under the age of 16 years contrary to s 61M(1) of the Crimes Act;

Twelve counts of using SK, being a child under the age of 18 years, for pornographic purposes contrary to s 91G(1)(a) of the Crimes Act;

Two counts of possession of child abuse material contrary to s 91H(2) of the Crimes Act.

In respect of one of the counts of aggravated sexual intercourse (Sequence 46 in the tabulated summary below), the Court was asked to take into account a further 26 offences on a Form 1, including:

One offence of possession of a prohibited weapon (laser pointer), contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW);

Three offences of possession of child abuse material, contrary to s 91H(2) of the Crimes Act;

Seventeen offences of aggravated indecent assault,…

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 GW v R

Details

AGLC: GW v R [2018] NSWCCA 79
Case: [2018] NSWCCA 79
Decision Date: 02 May 2018

CaseChat Overview and Summary

The applicant, GW, appealed against his sentence following his convictions on 29 offences under the Crimes Act 1900 (NSW). These offences included contravening sections 61J(1), 61M(1), 91G(1)(a), and 91H(2) of the Act. The applicant was sentenced to imprisonment, and he contested the sentence's severity, arguing that it was manifestly excessive. The appeal was heard by the court, which was tasked with determining whether the sentence imposed was appropriate given the nature and circumstances of the offences.

The court needed to assess whether the sentence imposed was manifestly excessive and did not consider the relevant principles of sentencing under the Act. The applicant's counsel argued that the sentence was disproportionate to the crimes committed, taking into account the applicant's background and other mitigating factors. The prosecution, on the other hand, maintained that the sentence was appropriate given the severity and frequency of the offences. The court had to weigh these arguments against the statutory guidelines and the principles of sentencing to determine if the sentence was manifestly excessive.

In delivering the judgment, the court acknowledged the severity of the offences but also considered the mitigating factors presented by the applicant. The court found that while the offences were serious, the sentence imposed was not manifestly excessive. The court determined that the sentence reflected the gravity of the crimes and was consistent with the sentencing principles set out in the Act. The appeal was therefore dismissed, and the original sentence was upheld.

Orders