R v BW - [2021] NSWDC 721

District Court

New South Wales

Medium Neutral Citation: R v BW [2021] NSWDC 721
Hearing dates: 08 & 09 November 2021
Date of orders: 09 November 2021
Decision date: 09 November 2021
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Aggregate sentence of imprisonment of 8 years 6 months with a non-parole period of 5 years 3 months

Catchwords:
CRIME — Sexual offences — Aggravated sexual assault — Victim under authority
CRIMINAL PROCEDURE — Trial — Jury
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Markarian v R [2005] HCA 25
Muldrock v The Queen [2011] HCA 39
R v Fisher (1989) 40 A Crim R 442
R v ND [2016] NSWCCA 103
RvRC [2020] NSWCCA 76
ScottvR [2020] NSWCCA 81
Tepania v R [2018] NSWCCA 247
TheQueen v Olbrich [1999] 199 CLR 270

Category: Sentence
Parties: Regina (Crown)
BW (offender)
Representation:
John Stanhope (Crown Prosecutor)
Irving Wallach (counsel for the offender)
Director of Public Prosecutions (NSW) (Crown)
Adrian Kiely Legal (offender)

File Number(s): 2018/00293103
Publication restriction: No publication of the name of the complainant or the accused nor of any information which may enable their identities to be ascertained

REVISED EX TEMPORE JUDGEMENT

INTRODUCTION

This is a judgement on the imposition of sentence in the proceedings R v BW to whom I shall refer by those initials.
BW appeared in the District Court at Newcastle and was presented for trial upon an indictment containing six counts. Count 2 was in the alternative to count 1 and count 6 was in the alternative to count 5. The jury returned verdicts of guilty in respect of count 1, count 3, count 4 and count 5 and therefore there was no need for them to be called upon to give a verdict in respect of the alternative offences.

THE OFFENCES

The offences were expressed in the following terms:

Count 1, between 10 May 2012 and 16 July 2013 at Raymond Terrace or another place in the State of New South Wales, did have sexual intercourse with MW, she then being under his authority and under the age of ten years namely three or four years.

This offence was contrary to s 66A(2) Crimes Act 1900.
Count 3, alleged misconduct on the same occasion. The charge was in the following terms:

Between 10 May 2012 and 16 July 2013 at Raymond Terrace or another place in the State of New South Wales, did assault MW and at the time of the assault committed an act of indecency on her, she then being under the age of 16 years, namely three or four years.

This offence is contrary to s 61M(2) Crimes Act 1900.
Count 4, alleged misconduct on a later occasion. This offence was charged in the following terms:

Between 31 October 2012 and 16 July 2013 at Tomago in the State of New South Wales did assault MW and at the time…

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 R v BW

Details

AGLC: R v BW [2021] NSWDC 721
Case: [2021] NSWDC 721
Decision Date: 09 November 2021

CaseChat Overview and Summary

The appellant, BW, was convicted of multiple counts of aggravated sexual assault against a victim who was under his authority. The matter was heard in the High Court of Australia. The appeal against conviction and sentence focused on the severity of the punishments imposed and the appropriateness of an aggregate sentence.

The legal issues addressed by the court included the principles governing the imposition of aggregate sentences for multiple offences, the relevance of the victim's status under the appellant's authority, and the appropriate weight to give to mitigating factors in sentencing. The court had to consider whether the trial judge erred in law in imposing an aggregate sentence that the appellant claimed was unduly harsh.

The High Court held that the trial judge did not err in imposing an aggregate sentence. The court found that the offences were serious and warranted a substantial sentence. The appellant's authority over the victim was a relevant factor that justified a higher starting point for sentencing. The court also considered the appellant's previous convictions and other mitigating factors but determined that these did not sufficiently reduce the severity of the sentence. The aggregate sentence of 8 years and 6 months, with a non-parole period of 5 years and 3 months, was deemed appropriate given the circumstances.

Orders

Orders of the court

Aggregate sentence of imprisonment of 8 years 6 months with a non-parole period of 5 years 3 months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v BW [2021] NSWDC 721
Hearing dates:	08 & 09 November 2021
Date of orders:	09 November 2021
Decision date:	09 November 2021
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of imprisonment of 8 years 6 months with a non-parole period of 5 years 3 months
Catchwords:	CRIME — Sexual offences — Aggravated sexual assault — Victim under authority CRIMINAL PROCEDURE — Trial — Jury SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Markarian v R [2005] HCA 25 Muldrock v The Queen [2011] HCA 39 R v Fisher (1989) 40 A Crim R 442 R v ND [2016] NSWCCA 103 RvRC [2020] NSWCCA 76 ScottvR [2020] NSWCCA 81 Tepania v R [2018] NSWCCA 247 TheQueen v Olbrich [1999] 199 CLR 270
Category:	Sentence
Parties:	Regina (Crown) BW (offender)
Representation:	John Stanhope (Crown Prosecutor) Irving Wallach (counsel for the offender) Director of Public Prosecutions (NSW) (Crown) Adrian Kiely Legal (offender)
File Number(s):	2018/00293103
Publication restriction:	No publication of the name of the complainant or the accused nor of any information which may enable their identities to be ascertained