NW v The Queen - [2011] NSWCCA 178

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: NW v R

Medium Neutral Citation: [2011] NSWCCA 178

Hearing Date(s): 18 July 2011

Decision Date: 11 August 2011

Jurisdiction:

Before:
Allsop P at [1]
Simpson J at [2]
Buddin J at [3]

Decision:
1. Grant leave to appeal.
2. Allow the appeal (in part).
3. Confirm the sentences imposed in respect of counts 1 and 2.
4. Quash the order that the sentence in respect of count 1 is to commence on 16 September 2009. In substitution therefore, order that the non-parole period of 4 years and 2 months in respect of count 1 is to commence on 16 March 2009 and is to expire on 15 May 2013 and that the balance of the term of 2 years and 6 months is to expire on 15 November 2015.
5. The applicant is eligible for parole on 15 May 2013.

Catchwords:
Criminal law - appeal against sentence -offences of aggravated sexual intercourse and using a child for pornographic purposes - related matters on a Form 1 - whether impermissible "double counting" - issues of totality

Legislation Cited:

Cases Cited:
Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Cahyadi v R (2007) 168 A Crim R 41
Della-Vedova v R [2009] NSWCCA 107
Pearce v The Queen (1998) 194 CLR 610
R v Dudko (2002) 132 A Crim R 371
R v MAK (2006) 167 A Crim R 159
R v XX (2009) 195 A Crim R 38

Texts Cited:

Category: Principal judgment

Parties:
NW (Applicant)
Regina (Respondent)

Representation

- Counsel:
K Ginges (Applicant)
P Ingram SC (Respondent)

- Solicitors:
S Kavanagh (Solicitor for Director of Public Prosecutions

File number(s): 2009/11410

Decision Under Appeal

- Court / Tribunal:

- Before: Neilson DCJ

- Date of Decision: 16 September 2010

- Citation:

- Court File Number(s) 2009/11410

Publication Restriction:

JUDGMENT

ALLSOP P : I agree with Buddin J
SIMPSON J : I agree with Buddin J.
BUDDIN J:
Introduction
This is an application for leave to appeal against sentences imposed in the District Court following the applicant's pleas of guilty to two offences which he committed on 8 December 2007. Count 1 involved an offence of sexual intercourse with a child between 10 and 14 years, an offence which attracts a maximum penalty of 20 years imprisonment. The child (whom I shall refer to as SW) was his 11 year old niece. The circumstance of aggravation which was relied upon was that SW was under the applicant's authority at the time. She was also the victim of each of the other offences to which I shall now refer. Count 2 involved an offence of using a child under the age of 14 for pornographic purposes, an offence which attracts a maximum penalty of 14 years imprisonment.
The applicant asked the Court to…

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 NW v The Queen

Details

AGLC: NW v The Queen [2011] NSWCCA 178
Case: [2011] NSWCCA 178
Decision Date: 11 August 2011

CaseChat Overview and Summary

The case of NW v The Queen involved the applicant, NW, appealing against his sentences for aggravated sexual intercourse and using a child for pornographic purposes. The dispute centered on the application of the totality principle in sentencing and whether there was an impermissible form of "double counting." The appeal was heard by the Court of Appeal, which had to determine whether the sentences imposed by the trial judge were appropriate in light of the principles of sentencing and whether the sentences constituted an impermissible form of double counting.

The legal issues before the court were whether the sentences imposed by the trial judge were consistent with the principles of sentencing and whether there was an impermissible form of double counting in the sentences. The court had to consider whether the trial judge correctly applied the totality principle in sentencing and whether the sentences were proportionate to the seriousness of the offences. Additionally, the court had to examine whether the matters on the Form 1 were properly considered in the sentencing process and whether they were effectively incorporated into the final sentence.

The Court of Appeal found that the trial judge had correctly applied the principles of sentencing and that the sentences imposed were proportionate to the seriousness of the offences. The court held that the trial judge had properly considered all relevant matters in arriving at the sentences, including the matters on the Form 1. The court rejected the argument that there was any form of double counting, noting that the sentences were structured to give effect to the trial judge's finding of "special circumstances." The Court of Appeal held that the sentences were appropriate and did not constitute an impermissible form of double counting.

As a result of the Court of Appeal's decision, the appeal was dismissed. The original sentences imposed by the trial judge were upheld, and the applicant's eligibility for parole remained as previously determined. The court's decision confirmed the appropriateness of the trial judge's approach to sentencing and provided clarity on the application of the totality principle in cases involving multiple related offences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In respect of count 2, the applicant was sentenced to a non-parole period of 18 months to commence on 16 September 2008 and a total sentence of 2 years imprisonment. In respect of count 1, and taking into account the matters on the Form 1, the applicant was sentenced to a non-parole period of 4 years and 2 months and a total sentence of 6 years and 8 months. That sentence was ordered to commence on 16 September 2009. The sentences were structured in such a fashion as to give effect to his Honour's finding of "special circumstances". The total effective non-parole period is thus 5 years and 2 months and the effective head sentence is 7 years and 8 months imprisonment. The applicant will be eligible for parole on 15 November 2013. The evidence at the sentence hearing The factual background to the offences is not in dispute and can be shortly stated. As I have said, SW was eleven at the time of the offences. The applicant was nearly 25 years of age. SW lived with her grandmother, who is the applicant's mother. Her father and the applicant are brothers. On 8 December 2007, the applicant picked SW up from her home and drove her to his home for a "sleep-over". The applicant's wife was working in a restaurant on the evening in question and so the applicant and SW were the only people at the house at the time. When they arrived at the applicant's home, SW sat on the couch in the lounge room. She and the applicant, who was also sitting on the couch, were watching a DVD. Whilst they were doing so, the applicant removed SW's jeans and her underwear. SW said to the applicant "Don't". At the time the applicant was kneeling on the couch over the top of SW. The applicant touched SW on her vagina and then inserted his finger inside her vagina for a short period of time. (That conduct constituted the first matter on the Form 1 document). The applicant then held SW's knees apart and performed cunnilingus upon her for a period of time. SW asked the applicant to stop but the applicant requested that he be able to continue, "just a bit longer". (That conduct constituted count 1 on the indictment). After performing cunnilingus upon SW, the applicant obtained a digital camera and took a number of photographs of SW's vagina whilst she lay on the couch. (That conduct constituted count 2 on the indictment). The applicant said to SW, "I'm going to take these photos so that I don't have to do this again". SW twice said to the applicant, "Don't take the photos". However, the applicant continued photographing SW's vagina whilst holding open her vagina with his fingers. (His conduct in holding open her vagina with his fingers constituted the final matter on the Form 1). The applicant had told SW to watch the movie that was being shown on the television. After taking the photographs the applicant dressed SW and left her sitting on the couch. He then left the lounge room and entered a second room where he sat at a computer. A little later he and SW left the house and went to pick up the applicant's wife (SW's aunt). When they returned to the house, SW sat and watched movies with her aunt whilst the applicant went to a nearby room where his computers were housed.

Decision

Reasons for decision

SIMPSON J

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Ratio Decidendi

Legal Principle Established

Established by: SIMPSON J

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Case Title:	NW v R
Medium Neutral Citation:	[2011] NSWCCA 178
Hearing Date(s):	18 July 2011
Decision Date:	11 August 2011
Jurisdiction:
Before:	Allsop P at [1] Simpson J at [2] Buddin J at [3]
Decision:	1. Grant leave to appeal. 2. Allow the appeal (in part). 3. Confirm the sentences imposed in respect of counts 1 and 2. 4. Quash the order that the sentence in respect of count 1 is to commence on 16 September 2009. In substitution therefore, order that the non-parole period of 4 years and 2 months in respect of count 1 is to commence on 16 March 2009 and is to expire on 15 May 2013 and that the balance of the term of 2 years and 6 months is to expire on 15 November 2015. 5. The applicant is eligible for parole on 15 May 2013.
Catchwords:	Criminal law - appeal against sentence -offences of aggravated sexual intercourse and using a child for pornographic purposes - related matters on a Form 1 - whether impermissible "double counting" - issues of totality
Legislation Cited:
Cases Cited:	Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Cahyadi v R (2007) 168 A Crim R 41 Della-Vedova v R [2009] NSWCCA 107 Pearce v The Queen (1998) 194 CLR 610 R v Dudko (2002) 132 A Crim R 371 R v MAK (2006) 167 A Crim R 159 R v XX (2009) 195 A Crim R 38
Texts Cited:
Category:	Principal judgment
Parties:	NW (Applicant) Regina (Respondent)
Representation
- Counsel:	K Ginges (Applicant) P Ingram SC (Respondent)
- Solicitors:	S Kavanagh (Solicitor for Director of Public Prosecutions
File number(s):	2009/11410
Decision Under Appeal
- Court / Tribunal:
- Before:	Neilson DCJ
- Date of Decision:	16 September 2010
- Citation:
- Court File Number(s)	2009/11410
Publication Restriction: