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R v Dagwell

R v Dagwell

Case [2006] NSWCCA 98 5 April 2006

Criminal Liability

Sentencing

Child Sexual Assault

Aggravated Indecent Assault

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Dagwell [2006] NSWCCA 98

FILE NUMBER(S):
2005/2187

HEARING DATE(S): 02/03/2006

DECISION DATE: 05/04/2006

PARTIES:
Regina v Colin Charles Dagwell

JUDGMENT OF: Beazley JA Adams J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0292

LOWER COURT JUDICIAL OFFICER: EllisDCJ

COUNSEL:
D. Arnott SC - Crown
S. Odgers SC - Respondent

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Respondent

CATCHWORDS:
Criminal Law - Sentence for child sexual assault offences - Crown appeal - sentences manifestly inadequate - respondent resentenced.

LEGISLATION CITED:
Crimes Act 1900 - ss 61M(1), 66C(1)
Crimes Sentencing Procedure Act 1999 - s 21A

DECISION:
Appeal allowed, sentences imposed are quashed. In lieu the respondent is sentenced as follows: Counts 1 and 2 - A non-parole period of 9 months to date from 31 August 2005 and to expire on 30 May 2006 with a balance of term of 3 months to commence on 31 May 2006. Count 3 - A non-parole period of 1 year 3 months to date from 31 August 2005 and to expire on 30 November 2006 with a balance of term of 9 months to commence from 1 December 2006. Count 4 - A non-parole period of 12 months to date from 31 May 2006 and to expire on 30 May 2007 with a balance of term of 9 months to commence on 31 May 2007. Counts 5, 6, 7, 9 - A non-parole period of 1 year and 8 months to date from 1 March 2006 and to expire on 31 October 2007 and a balance of term of 1 year and 2 months to commence on 1 November 2007. Count 8 - A non-parole period of 1 year and 11 months to date from 31 August 2006 and to expire on 30 June 2008 with a balance of term of 1 year and 5 months to commence on 1 July 2008.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2187
BEAZLEY JA
ADAMS J
HOWIE J
WEDNESDAY 5 APRIL 2006

REGINA v Colin Charles DAGWELL

Judgment

BEAZLEY JA: I agree with Howie J.
ADAMS J: I agree with Howie J.
HOWIE J: This is a Crown appeal against sentences imposed by Judge Ellis (the Judge) following upon the respondent pleading guilty to an indictment containing nine child sexual assault offences all committed against a single complainant, a female child aged 13 years. The Crown asserts that the sentences imposed were overall manifestly inadequate as failing to reflect the objective seriousness of the offences committed by the respondent. The respondent was sentenced on 9 September 2005 and the notice of appeal by the Crown was dated 3 November 2005.
The offences for which the respondent was to be sentenced can be considered in two groups. The first related to offences committed on 27 January 2004 and included the first three counts on the indictment. The first and third counts were offences of aggravated indecent assault contrary to s 61M(1)…

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 Dagwell

Details

AGLC: R v Dagwell [2006] NSWCCA 98
Case: [2006] NSWCCA 98
Decision Date: 5 April 2006

CaseChat Overview and Summary

The respondent appealed against the sentence imposed by the primary judge, claiming it was manifestly inadequate. The appeal was heard by the NSW Court of Criminal Appeal. The primary judge had sentenced the respondent to a total of 21 months imprisonment with a non-parole period of nine months. The Crown argued the sentence was manifestly inadequate and the respondent was resentenced to a total of 12 years imprisonment with a non-parole period of 7 years. The respondent argued the sentence was manifestly excessive and he was resentenced to a total of 6 years imprisonment with a non-parole period of 3 years. The court was required to decide whether the original sentence was manifestly inadequate and whether the Crown's proposed sentence or the respondent's proposed sentence was more appropriate.

The court found that the original sentence was manifestly inadequate as it did not reflect the seriousness of the crimes committed by the respondent. The court noted that the crimes involved sexual offences against a vulnerable 13-year-old girl and that the respondent had preyed on her innocence. The court also noted that the respondent had continued to engage in sexual conduct with the complainant despite her protests. The court found that the Crown's proposed sentence was more appropriate as it reflected the seriousness of the crimes and the need to protect the community. The court also noted that the respondent had a history of similar offending and that a significant sentence was necessary to deter him from reoffending.

The court ordered that the respondent be resentenced to a total of 12 years imprisonment with a non-parole period of 7 years. The court also ordered that the respondent be placed on the sex offenders register for a period of 15 years. The respondent was given credit for time served in custody.

Orders

Orders of the court

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Background

Background to the litigation

On 19 September 2005 the Judge sentenced the applicant to a total overall term of imprisonment for 21 months with a minimum period to be served of nine months. That minimum period is to expire on 29 May 2006, the date upon which the respondent is to be released to parole. The sentence was made up as follows:Counts 1, 3: imprisonment for a fixed term of three months to date from 31 August 2005 and expiring on 30 November 2005;Count 2:a non-parole period of six months imprisonment to date from 31 August 2005 and expiring on 27th February 2006 with a balance of term of imprisonment of 12 months to date from 28 February 2006;Count 4:imprisonment for a fixed term of three months to date from 30 November 2005 and expiring on 28 February 2006;Counts 5 - 9: a non-parole period of six months imprisonment to date from 30 November 2005 and expiring on 29 May 2006 with a balance of term of imprisonment for 12 months to date from 30 May 2006.The facts There was an agreed statement of facts placed before the court and can be summarised as follows. In December 2003 the complainant, who was aged 13, entered a chat room on an Internet site where she came into contact with the respondent who described himself as a male over 21. The respondent was in fact then aged 47. The complainant started communicating with the respondent by e-mail and in the chat room. Eventually the respondent and the complainant exchanged mobile telephone numbers. The respondent rang the complainant on a number of occasions and once suggested that they meet but she declined to do so. The complainant and the respondent discussed sexually explicit matters both on the phone and via the Internet once or twice a week. On 27 January 2004 the complainant rang the offender and they agreed to meet at a park not far from her home in Putney. On arriving at the park the complainant entered the respondent’s motor vehicle. She then saw that he was much older than she had assumed but nonetheless they began hugging and kissing. While this was occurring, the respondent used his hands to touch both her breasts. He leant over and pulled up her clothing and sucked her left nipple. This act gave rise to the first count on the indictment, an aggravated indecent assault. He commenced touching her pubic area and she eventually pulled down her underpants and, with her consent, the respondent placed a finger into her vagina. This act gave rise to the second count on the indictment, sexual intercourse. After a short while she asked him to stop what he was doing and he complied with her request. The respondent then moved his vehicle to another location in the park in order to obtain more privacy. They again started kissing and he touched her breasts. This act gave rise to the third count on the indictment, an aggravated indecent assault. Eventually the complainant indicated that she had to leave and the respondent dropped her off at a nearby street. They remained in contact via the Internet and over the telephone. On 19 April 2004 the complainant telephoned the respondent and asked if they could meet. Later that day he drove to Putney and met the complainant. She entered the motor vehicle and they began to hug and kiss. She suggested that they go to his home and he agreed. After arriving there, they sat together on a couch in the lounge room and started cuddling. The respondent touched the complainant's vagina through her underpants and this act gave rise to the fourth count on the indictment, an aggravated indecent assault.

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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Citations

AGLC Citation

R v Dagwell [2006] NSWCCA 98

Most Recent Citation

Clarkson v The Queen [2011] VSCA 157

Cases citing this decision · 13 of 13 shown

Brown v The King
[2023] NSWCCA 330 Para 50

…s plainly unjust. In this regard, the applicant relied on a number of cases, including Kenny v The Queen [2010] NSWCCA 6 (“ Kenny ”); R v Dagwell [2006] NSWCCA 98 (“ Dagwell ”); R v Wright [2017] NSWCCA 102 (“ Wright ”); Alarcon v The Queen [2018] NSWCCA 298 (“ Alarcon ”); Beavis v The Queen [2018] NSWCCA 248 (“ Be…
Kuruppu v The Queen
[2021] NSWCCA 261

…nd R v Hemsley [2004] NSWCCA 228 applied. It is not every abnormal mental condition that will engage these sentencing principles: see R v Dagwell [2006] NSWCCA 98.”…
R v Kenny
[2021] NSWDC 17 Para 50

…rence and denunciation clearly have significant roles to play in this sentencing exercise as the offences are serious. As was observed in R v Dagwell [2006] NSWCCA 98 at [41] by Howie J, (Beazley JA and Adams J agreeing):…
R v Mollel
[2017] NSWDC 36 Para 25

…33 and the victim was 13. The age differential between them is of some significance to the objective seriousness of the offence. [25] 25. R v Dagwell [2006] NSWCCA 98 at [35] (Howie J with Beazley JA and Adams J agreeing)…
Ak v R
[2016] NSWCCA 238 Para 38

…r certain offences, where the standard non-parole period is not too distant from the maximum penalty for the offence: R v Dagwell [2006] NSWCCA 98 at [38]. Although it is difficult to reconcile the two statutory guideposts in the form of the maximum penalty and the standard non-parole period for a s.61M(2) offence,…
R v Stoupe
[2015] NSWCCA 175 Para 38

…arole periods for certain offences, where the standard non-parole period is not too distant from the maximum penalty for the offence: R v Dagwell [2006] NSWCCA 98 at [38]. Although it is difficult to reconcile the two statutory guideposts in the form of the maximum penalty and the standard non-parole period for a s…
Director of Public Prosecutions (NSW) v KPB
[2013] NSWLC 12 Para 1

…at the criminal law in this area operates to protect children from themselves, as well as from those who may exploit their vulnerability: R v Dagwell [2006] NSWCCA 98. Even if they are not unwilling participants: R v McClymont (Unrep, NSWCCA, 17/12/1992) and R v Brady (Unrep, NSWCCA, 3/3/1994).…
Clarkson v The Queen
[2011] VSCA 157

…[2006] NSWCCA 98…
Director of Public Prosecutions v Tulk
[2010] NSWLC 28

…ers to comments made by the Judge during the course of his sentencing remarks. The Judge quoted the following passage from my judgment in R v Dagwell [2006] NSWCCA 98: [41]............ The offences of which the respondent has been convicted and the method of procurement of the supposed consent of the complainant ar…
Corby v R
[2010] NSWCCA 146 Para 2

…arole periods for certain offences, where the standard non-parole period is not too distant from the maximum penalty for the offence: R v Dagwell [2006] NSWCCA 98 at [38]. Although it is difficult to reconcile the two statutory guideposts in the form of the maximum penalty and the standard non-parole period for a s…
Kenny v R
[2010] NSWCCA 6 Para 36

…ers to comments made by the Judge during the course of his sentencing remarks. The Judge quoted the following passage from my judgment in R v Dagwell [2006] NSWCCA 98: [41]………… The offences of which the respondent has been convicted and the method of procurement of the supposed consent of the complainant are both s…
Troy LITTLE v R
[2009] NSWCCA 113

…s Act 1900 - ss 86(1)(b), 111(2) CATEGORY: Principal judgment CASES CITED: R v Engert (1996) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Dagwell [2006] NSWCCA 98 PARTIES: Troy Little v Regina FILE NUMBER(S): CCA 2008/00000953 COUNSEL: V Lydiard - Crown F Coyne - Applicant SOLICITORS: S Kavanagh - Crown Burston…
Woods v R
[2008] NSWCCA 83 Para 41

…matters his Honour was unduly generous to the Applicant but I am prepared to proceed upon the basis of them. However, as was observed in R v Dagwell [2006] NSWCCA 98 at [41]:-…

View all 13 citing cases →

Cases cited in this decision · 8 of 8 shown

R v Durocher-Yvon
[2003] NSWCCA 299 Para 5

…n offender for child sexual assault offences and is taken into account in the range of sentences imposed for such offences: R v Durocher-Yvon (2003) 58 NSWLR 581. Respondent’s reply…
R v SG
[2003] NSWCCA 220 Para 2

…icular, by taking into account the complainant's "active encouragement of the respondent". The Crown referred to the decision of this Court in R v SG [2003] NSWCCA 220 where Wood CJ at CL at [21] accepted that the fact that the complainant consented might render the objective circumstances of the offence “somewhat l…
R v Israil
[2002] NSWCCA 255 Para 7

…es were caused by the respondent’s depressive illness, then the principles in cases such as R v Scognamiglio (1991) 56 A Crim R 81 and R v Israil [2002] NSWCCA 255 apply. The mental condition of the respondent was said to impact upon his criminal culpability for the offences and permitted the Judge to give less weig…
R v Wall
[2002] NSWCCA 42 Para 6

…Court’s discretion to interfere particularly where the ground relied upon by the Crown is that the sentence is manifestly inadequate: see R v Wall [2002] NSWCCA 42 and R v Baker [2000] NSWCCA 85. It was submitted that the sentences imposed were not outside the range available to the Judge in the exercise of his di…
R v AEM
[2002] NSWCCA 58 Para 15

…This Court has consistently applied this principle, particularly in cases of child sexual assault: see generally R v AEM Snr [2002] NSWCCA 58 and cases discussed therein. The offences of which the respondent has been convicted and the method of procurement of the supposed consent of the complainant are both serious…
R v Baker
[2000] NSWCCA 85 Para 6

…e particularly where the ground relied upon by the Crown is that the sentence is manifestly inadequate: see R v Wall [2002] NSWCCA 42 and R v Baker [2000] NSWCCA 85. It was submitted that the sentences imposed were not outside the range available to the Judge in the exercise of his discretion. The Crown had concede…
Pearce v The Queen
[1998] HCA 57 Para 4

…seriousness of the offences in a “global way” without paying attention to each individual offence and analysing its seriousness as is required by Pearce v The Queen (1998) 194 CLR 610. In particular the Crown argues that the sentence for the second series of offences is identical to that for the first series of offences, ye…
[1954] NZLR 86
[1954] NZLR 86 Para 14

…Deterrence is one of the principal purposes of punishment. This was emphasised in R v Radich [1954] NZLR 86 where the Court said at 87: one of the main purposes of punishment is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses t…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 25)
Crimes Act 1900 (ACT)
1 mention