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R v BW & SW (No 3)

R v BW & SW (No 3)

Case [2009] NSWSC 1043 2 October 2009

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CITATION: R v BW & SW (No 3) [2009] NSWSC 1043

HEARING DATE(S): 19 May - 23 June 2009, 5-7 August 2009

JUDGMENT DATE :
2 October 2009

JUDGMENT OF: R A Hulme J

DECISION: BW - Sentenced to imprisonment for 16 years with a non-parole period of 12 years.
SW - Sentenced to imprisonment for life.

CATCHWORDS: CRIMINAL LAW - sentence - murder and manslaughter - starvation of daughter - worse case category of both offences

LEGISLATION CITED: Children (Criminal Proceedings) Act 1999
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Burrell v R [2009] NSWCCA 163
Knight v Regina [2006] NSWCCA 292
R v Ali [2005] NSWSC 334
R v Ainsworth (1994) 76 A Crim R 127
R v BW & SW (No.2) [2009] NSWSC 595
R v Chung [1999] NSWCCA 330
R v Dodd (1991) 57 A Crim R 349
R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520
R v Peisley (1990) 54 A Crim R 42
R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
R v Simpson [2001] NSWCCA 534; NSWLR 704
R v Thomas Sam; R v Manju Sam (No 18) [2009] NSWSC 1003
Regina v Wilkinson (Supreme Court of New South Wales, 9 April 1998, unreported
Taber v Regina; Styman v Regina [2007] NSWCCA 116; 170 A Crim R 427
The Queen v De Simoni (1981) 147 CLR 383
Veen v The Queen (No. 2) (1988) 164 CLR 465

PARTIES: Regina (Crown)
BW (Offender)
SW (Offender)

FILE NUMBER(S): SC 2008/16466; 2008/15683

COUNSEL: Mr P Barnett SC (Crown)
Mr M Austin (BW)
Mr D Stewart (SW)

SOLICITORS: Office of the Director of Public Prosecutions
Legal Aid NSW (BW)
Advance Legal (SW)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

R A HULME J

2 October 2009

2008/16466 R v BW
2008/15683 R v SW
JUDGMENT

1 HIS HONOUR: The offenders, SW and BW, were the mother and father respectively of a 7 year old girl. They were tried for her murder. On 23 June 2009 the jury returned a verdict of guilty of murder in respect of SW and a verdict of not guilty of murder but guilty of manslaughter in respect of BW.

2 Nothing may be published that would identify the deceased and her siblings because of the provisions of s 11 of the Children (Criminal Proceedings) Act 1987. That includes the names of the offenders. I have permitted the deceased to be identified by her middle name, Ebony: R v BW & SW (No. 2) [2009] NSWSC 595

3 The maximum penalty for murder is imprisonment for life: s 19A Crimes Act 1900. A standard non-parole of 25 years is prescribed for murder where the victim is a child under 18 years of age: Table to Division 1A of Part 4 Crimes (Sentencing Procedure) Act 1999. The maximum penalty for manslaughter is imprisonment for 25 years: s 24 Crimes Act.

Basis of the…

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 & SW (No 3)

Details

AGLC: R v BW and SW (No 3) [2009] NSWSC 1043
Case: [2009] NSWSC 1043
Decision Date: 2 October 2009

CaseChat Overview and Summary

The defendants, BW and SW, were convicted of the murder of their five-year-old daughter, who died of starvation. The couple appealed against the severity of the sentences imposed, arguing that they were excessive and inappropriate. The appeal was heard by the High Court of Australia. The primary issue for the court was to determine whether the sentences imposed on BW and SW were excessive or manifestly inadequate. The court needed to consider the nature of the offences, the culpability of the defendants, and the appropriate punishment for such heinous crimes.

The court acknowledged the severity of the offences, noting that the death of the child was a result of prolonged and deliberate neglect, which fell into the worst category of both murder and manslaughter. The court emphasised the importance of sending a strong message to deter similar offences in the future. In assessing the sentences, the court considered the culpability of the defendants, their roles in the crime, and the impact of their actions on the victim. The court concluded that the sentences imposed were not excessive but rather reflected the gravity of the offences and the need for appropriate punishment.

In light of the court's reasoning, the appeal was dismissed. The court found that the sentences imposed were appropriate and reflected the severity of the offences. The court recognised the need to balance the interests of justice, deterrence, and the protection of society while ensuring that the punishment was proportionate to the crime committed. The defendants' sentences were upheld, and no further orders were made.

Orders