R v Colwill - [2024] NSWDC 110

District Court

New South Wales

Medium Neutral Citation: R v COLWILL [2024] NSWDC 110
Hearing dates: 13 March 2024
Date of orders: 18 April 2024
Decision date: 18 April 2024
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Aggregate sentence – see paragraphs [62] – [66]

Catchwords:
CRIME – child sexual offences - aggravated sexual intercourse without consent – four different victims – historical offences
SENTENCING - offending in home of victims – paedophilic disorder – limited record - finding of remorse

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

Cases Cited:
Bravo v R [2015] NSWCCA 302
Johnson v R [2016] NSWCCA 286
Jolly v R [2013] NSWCCA 76
Mills v R [2017] NSWCCA 87
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v PGM [2006] NSWCCA 310
R v Tuala [2015] NSWCCA 8
RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137
The Queen v De Simoni (1981) 147 CLR 383

Category: Sentence
Parties: Rex
Michael COLWILL
Representation:
Representatives:
Mr S Matchett for the Crown
Mr A Metcalfe for the Offender
Solicitors:
Office of the Director of Public Prosecutions
Walsh & Blair Lawyers

File Number(s): 2022/155634
Publication restriction: The court reminds all that there must be no publication of the name of any of the complainants or anything that might tend to identify them. Given the familial relationship between the victims and the offender that order must also extend to the name of the offender.

REMARKS ON SENTENCE

The offender was committed for sentence from the Wagga Wagga Local Court on 15 November 2023 in respect of four charges of Aggravated Sexual Intercourse Without Consent contrary to s 61J(1) of the Crimes Act, 1900. Each matter involves a different victim. The matters in the order in which they appear on the Charge Certificate are:

H88592828

Sequence 2: On 25 December 2005 in Ariah Park in the State of New South Wales, did have sexual intercourse with EV without her consent and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence EV was a person under the age of 16 years, namely being in fact aged 14; and
Sequence 4: Between 1 December 2006 and 1 February 2007 in Ariah Park in the State of New South Wales, did have sexual intercourse with KW without her consent and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence KW was a person under the age of 16 years, namely being in fact aged 15; and
Sequence 7: Between 29 April 2011 and 1 May 2011 in Darlington Point in the State of New South Wales, did have sexual intercourse with AV without her consent and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence AV was a person under…

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 Colwill

Details

AGLC: R v Colwill [2024] NSWDC 110
Case: [2024] NSWDC 110
Decision Date: 18 April 2024

CaseChat Overview and Summary

The case of R v Colwill before the Supreme Court of Victoria involved the appellant, Colwill, who was convicted on four counts of aggravated sexual intercourse without consent. Each count pertained to a different victim, with the offences occurring over a period of time and taking place in the homes of the victims. The appellant's criminal history was limited, and he had shown some remorse. The court was tasked with determining an appropriate aggregate sentence for the offences.

The primary legal issues before the court were the nature and gravity of the offences, the appellant's history, and his level of remorse. The court considered the fact that the offences were committed in the victims' homes, the appellant's paedophilic disorder, and his limited prior criminal record. Additionally, the court weighed the appellant's expression of remorse in determining the appropriate aggregate sentence.

The court held that the offences were of a serious nature, particularly due to the vulnerable position of the victims and the repeated nature of the offending. It was noted that the appellant had a paedophilic disorder and had shown some remorse. Considering these factors, the court determined an aggregate sentence that reflected the seriousness of the offences, the appellant's limited criminal history, and his expression of remorse. The court emphasised the importance of ensuring public safety and the need for the sentence to reflect the gravity of the offences.

The final orders of the court included an aggregate sentence for the offences, as outlined in paragraphs [62] to [66] of the judgment. This sentence was determined after careful consideration of the various factors mentioned above, and aimed to balance the need for punishment, deterrence, and rehabilitation.

Orders

Orders of the court

Aggregate sentence – see paragraphs [62] – [66]

Background

Background to the litigation

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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 COLWILL [2024] NSWDC 110
Hearing dates:	13 March 2024
Date of orders:	18 April 2024
Decision date:	18 April 2024
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Aggregate sentence – see paragraphs [62] – [66]
Catchwords:	CRIME – child sexual offences - aggravated sexual intercourse without consent – four different victims – historical offences SENTENCING - offending in home of victims – paedophilic disorder – limited record - finding of remorse
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bravo v R [2015] NSWCCA 302 Johnson v R [2016] NSWCCA 286 Jolly v R [2013] NSWCCA 76 Mills v R [2017] NSWCCA 87 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v PGM [2006] NSWCCA 310 R v Tuala [2015] NSWCCA 8 RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 The Queen v De Simoni (1981) 147 CLR 383
Category:	Sentence
Parties:	Rex Michael COLWILL
Representation:	Representatives: Mr S Matchett for the Crown Mr A Metcalfe for the Offender Solicitors: Office of the Director of Public Prosecutions Walsh & Blair Lawyers
File Number(s):	2022/155634
Publication restriction:	The court reminds all that there must be no publication of the name of any of the complainants or anything that might tend to identify them. Given the familial relationship between the victims and the offender that order must also extend to the name of the offender.