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PW v The Queen

PW v The Queen

Case [2019] NSWCCA 298 20 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: PW v R [2019] NSWCCA 298
Hearing dates: 22 November 2019
Date of orders: 20 December 2019
Decision date: 20 December 2019
Before: Basten JA at [1];
Macfarlan JA at [11];
Campbell J at [39]
Decision:
(1) Grant leave to appeal against sentence.
(2) Dismiss the appeal against sentence.

Catchwords: CRIME – application for leave to appeal against sentence – sexual offences – aggregate sentence imposed – whether sentencing judge erred in grouping offences into categories and nominating the same indicative sentence for each offence within the categories – whether sentencing judge erred in not finding special circumstances where he said that doing so would be a form of double counting – leave to appeal granted but appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 61O(1A)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 53A
Cases Cited: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Kerr v R [2016] NSWCCA 218
Khawaja v R [2014] NSWCCA 80
Martin v R [2013] NSWCCA 24
Mulato v R [2006] NSWCCA 282
Nguyen v R [2019] NSWCCA 87
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v AA [2017] NSWCCA 84
R v BA [2014] NSWCCA 148
R v Fidow [2004] NSWCCA 172
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
Sivell v R [2009] NSWCCA 286
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: PW (Applicant)
Regina (Respondent)
Representation:
Counsel:
G D Wendler (Applicant)
B Hatfield (Respondent)
Solicitors:
William O’Brien & Ross Hudson Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/268428
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

27 October 2017

Before:

Noman SC DCJ

File Number(s):

2014/268428

Judgment

BASTEN JA: I agree with Macfarlan JA that there should be a grant of leave to appeal against the aggregate sentence imposed on the applicant in the District Court, but that the appeal should be dismissed. I agree with Macfarlan JA’s reasoning, but would add the following observations with respect to the attempt to demonstrate an error in the exercise of the sentencing discretion by reference to the length of the individual sentences indicated as appropriate, but not imposed.
The power to impose an aggregate sentence with respect to imprisonment for two or more offences, instead of imposing separate sentences, is provided by s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a provision which commenced in March 2011. The section also provides that when imposing an aggregate sentence, the court “must indicate to the offender, and make a written record of, … the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provisions of this Act) had separate sentences been imposed instead of an aggregate…

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 PW v The Queen

Details

AGLC: PW v The Queen [2019] NSWCCA 298
Case: [2019] NSWCCA 298
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the matter of PW versus The Queen, the defendant sought leave to appeal against his sentence for multiple sexual offences. The case was heard by the High Court of Australia. The primary dispute centred around the aggregation of the defendant's sentences for multiple offences and the process by which the sentencing judge had grouped these offences into categories, assigning a consistent indicative sentence for each offence within the categories. The defendant argued that the sentencing judge had erred in not recognising special circumstances, which the defendant contended should have been considered separately to avoid double counting.

The legal issues before the court included whether the sentencing judge had correctly exercised their discretion in determining the aggregate sentence and whether there had been an error in the approach to special circumstances. The court was required to examine if the sentencing judge had appropriately considered the principles of sentencing for multiple offences and whether the application of special circumstances was adequately justified. The defendant's argument was that the sentencing judge's approach to special circumstances amounted to double counting, which was not permissible.

The court acknowledged that the sentencing judge had a broad discretion in determining the aggregate sentence for multiple offences and had correctly considered the relevant sentencing principles. The court held that the sentencing judge's decision to group offences and assign the same indicative sentence within categories was within the permissible range of judicial discretion. Regarding special circumstances, the court found that the sentencing judge had correctly determined that applying them in the manner proposed by the defendant would indeed constitute double counting. Therefore, the court concluded that no error had been made in the sentencing process. The application for leave to appeal was granted, but the appeal itself was dismissed.

Orders