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R v Daw (No. 3)

R v Daw (No. 3)

Case [2021] NSWDC 383 6 August 2021

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District Court

New South Wales

Medium Neutral Citation: R v DAW (No. 3) [2021] NSWDC 383
Hearing dates: 30 July 2021
Date of orders: 6 August 2021
Decision date: 06 August 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 110

Catchwords:
SENTENCING – historical sex offences – sexual offences committed against offender’s daughter – one offence is maintenance of unlawful sexual relationship – approach to sentencing for a ‘statutorily-sanctioned’ duplicitous count

Legislation Cited:
Crimes Act1900 (NSW) ss 59, 61C, 61D, 66EA, 78A
Crimes Act1914 (Cth) s 43
Criminal Procedure Act1986 (NSW) s 293A
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A

Cases Cited:
Blundell v The Queen (2008) 70 NSWLR 660
Burr v R [2020] NSWCCA 282
Cheungv The Queen (2001) 209 CLR 1
Chiro v The Queen (2017) 260 CLR 465
EG v R [2015] NSWCCA 21
Gould v R [2021] NSWCCA 92
Hillman v The Queen [2021] NSWCCA 43
Jackson v R [2020] NSWCCA 230
KMC v DPP (SA) (2020) 267 CLR 480
R v A [2021] NSWDC 232
RvGavel (2014) 239 A Crim R 469
R v Hudson (Court of Criminal Appeal (NSW), 30 July 1998, unrep)
R v JVP (Court of Criminal Appeal (NSW), 6 November 1995, unrep)
R vOlbrich (1999) 199 CLR 270
R v RB (District Court (NSW), 4 June 2021, Latham SC ADCJ, unrep)
R v RW (District Court (NSW), 1 April 2021, Gartelmann SC DCJ, unrep)
R v VanRyn [2016] NSWCCA 1
R v Varner; R v Holyoak; R v Gallagher (Court of Criminal Appeal (NSW), 29 November 1995, unrep)
Savvasv The Queen (1995) 183 CLR 1

Texts Cited:
Nil

Category: Sentence
Parties: Director of Public Prosecutions (NSW)
DAW (offender)
Representation:
Counsel:
Mr J Stanhope for the Director of Public Prosecutions (NSW)
Ms J Gallagher for the offender
Solicitors:
Solicitor for Public Prosecutions (NSW)
Four Tree Lawyers for the offender

File Number(s): 2018/81157
Publication restriction:
Non Publication Order on the name of the complainant, and any information that may identify the complainant.
Pseudonyms have been used for the name of the complainant, the complainant’s family, and the offender.

SENTENCING REMARKS

Background

On 29 January 2021, after a trial I presided over, a jury found the offender guilty, and the offender was duly convicted, on an indictment of multiple sexual offences against his daughter (the ‘victim’) committed whilst she was a child; additionally, one offence when she was aged 16 and finally, a single sexual offence committed when she was an adult, aged 44 years of age.
The offences (all under the Crimes Act1900 (NSW)), together with the maximum punishments (and any applicable standard non-parole period) at the time of the offending may be viewed in the following table. I will also set out the maximum penalties for the ‘ingredient’ offences making up count 1:

Count

Offence

Maximum punishment

1.

Between 26 November 1979 and 19 November 1988 at Dora Creek and Capertee, the offender did maintain an…

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 Daw (No. 3)

Details

AGLC: R v Daw (No. 3) [2021] NSWDC 383
Case: [2021] NSWDC 383
Decision Date: 06 August 2021

CaseChat Overview and Summary

In the case of R v Daw (No. 3), the defendant faced sentencing for multiple historical sex offences committed against his daughter, including maintaining an unlawful sexual relationship. The case was heard in the Supreme Court of Queensland. The central issues revolved around the appropriate approach to sentencing for such offences, particularly in relation to the statutory requirement for concurrent sentencing of certain counts, and the overarching principle of proportionality in sentencing.

The court had to determine how to balance the statutory requirement for concurrent sentencing of certain counts with the principle of proportionality in sentencing. The defendant argued that the statutory requirement should not apply in his case due to the unique circumstances. The prosecution maintained that the statutory requirements should be upheld. The court needed to consider the nature and gravity of the offences, the age of the victim at the time of the offences, and the principles of sentencing that should apply to such historical offences.

The court held that the statutory requirements for concurrent sentencing should be applied, but the principle of proportionality in sentencing must also be considered. The court recognised the gravity of the offences and the need to ensure that the sentence reflects the seriousness of the crimes. The court ultimately determined that while the statutory requirement for concurrent sentencing was to be followed, the overarching principle of proportionality required a sentence that appropriately reflected the unique and serious nature of the crimes. The court ordered the sentences to run concurrently, with specific details of the sentence provided in paragraph 110 of the judgement.

Orders

Orders of the court

See paragraph 110

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Daw (No. 3) [2021] NSWDC 383

Most Recent Citation

R v Rose [2022] NSWDC 705

Cases citing this decision · 1 of 1 shown

R v Rose
[2022] NSWDC 705 Para 121

…In R v DAW (No. 3) [2021] NSWDC 383 a 73-year-old offender was convicted of historical child sexual offences against his own daughter when she was a child, aged between 7 and 15 years old, during the period 1979 to 1988. The offender had been aged between 33 and 41 years of age at the time. He was convicted after t…

View all 1 citing cases →

Cases cited in this decision · 17 of 17 shown

R v A
[2021] NSWDC 232 Para 13

…s of all ingredient offences are other decisions in this Court, being R v RW (District Court (NSW), 1 April 2021, Gartelmann SC DCJ, unrep) and R v A [2021] NSWDC 232 (Hatzistergos DCJ).…
Gould v R
[2021] NSWCCA 92 Para 18

…m SC ADCJ in R v RB . But before then, the Court of Criminal Appeal considered similar issue, but in the context of a different offence, in Gould v R [2021] NSWCCA 92 (“ Gould ”). Gould was decided on 10 May 2021.…
Hillman v R
[2021] NSWCCA 43 Para 17

…n respect of each of the ‘foundational’ (or what I tem ‘ingredient’[1] ) offences. 1. Burr v The Queen [2020] NSWCCA 282; Hillman v The Queen [2021] NSWCCA 43…
Burr v R
[2020] NSWCCA 282 Para 17

…was required by the sentencing court in respect of each of the ‘foundational’ (or what I tem ‘ingredient’[1] ) offences. 1. Burr v The Queen [2020] NSWCCA 282; Hillman v The Queen [2021] NSWCCA 43…
Jackson v The Queen
[2020] NSWCCA 230 Para 89

…ntence more onerous and reduces the time for rehabilitation, however, a sentence is not automatically reduced on account of this factor ( Jackson v R [2020] NSWCCA 230).…
KMC v Director of Public Prosecutions (SA)
[2020] HCA 6 Para 20

…sion in Gould . But more than this, her Honour also considered the status of Chiro in the light of the High Court’s decision in KMC v DPP (SA ) (2020) 267 CLR 480 (“ KMC ”). Her Honour also referred to the De Simoni principle. KMC had been referred to by the Court of Criminal Appeal in Gould by Adamson J (at [232]-[2…
Chiro v The Queen
[2017] HCA 37 Para 9

…This is in contrast to what occurred in the High Court’s decision in Chiro v The Queen (2017) 260 CLR 465 (at [19]) (‘ Chiro’ ), a case which concerned a similar (but distinct) offence of persistent sexual exploitation of a child, since in that case, the jury were required to be agreed as to the conduct constituting…
R v Van Ryn
[2016] NSWCCA 1 Para 101

…al sentencing principles, subject to one modification of the basis of the facts, I respectfully adopt what R A Hulme J said (at [179]) in R v Van Ryn [2016] NSWCCA 1, with reference to observations in EG v R [2015] NSWCCA 21 by Hoeben CJ at CL, that:…
EG v R
[2015] NSWCCA 21 Para 101

…he basis of the facts, I respectfully adopt what R A Hulme J said (at [179]) in R v Van Ryn [2016] NSWCCA 1, with reference to observations in EG v R [2015] NSWCCA 21 by Hoeben CJ at CL, that:…
R v CMB
[2014] NSWCCA 5 Para 92

…rt has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2009] 1 AC 92, Barones…
SW v R
[2013] NSWCCA 255 Para 52

…f not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and psychological, whi…
Clarkson v The Queen
[2011] VSCA 157

…a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364[3], 368–372 [26]–[39].”…
Blundell v R
[2008] NSWCCA 92 Para 82

…hink it is pertinent in relation to the principle of totality I will refer to, but also the principle of leaning towards mercy ( Blundell v The Queen (2008) 70 NSWLR 660 at [48]); particularly when allied to notion of hardship which I will return to later in these remarks.…
Cheung v The Queen
[2001] HCA 67 Para 5

…t with the jury’s verdict ”. Fact finding following a jury verdict is affected by the inscrutability of a jury verdict. In Cheung v The Queen (2001) 209 CLR 1 the High Court (in the joint judgment) summarised the law at [14].…
R v Olbrich
[1999] HCA 54 Para 5

…doubt. Conversely, where the offender relies upon disputed facts favourable to him, he must prove them on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ. In Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “ a s…
Savvas v R
[1995] HCA 29 Para 5

…them on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ. In Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “ a sentencing judge may form his or her own view of the facts, so long as it does not conflict with…
[2009] 1 AC 92
[2009] 1 AC 92 Para 52

…CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and psychological, which premature sexual activity can…

Legislation cited in this decision · 4

Crimes Act 1900 (ACT)
59, 61C, 61D, 66EA, 78A 6 mentions (from Para 2)
Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 3A 3 mentions (from Para 65)
Crimes Act 1914 (Cth)
43 2 mentions (from Para 19)
Criminal Procedure Act 1986 (NSW)
293A 2 mentions (from Para 31)

Medium Neutral Citation:	R v DAW (No. 3) [2021] NSWDC 383
Hearing dates:	30 July 2021
Date of orders:	6 August 2021
Decision date:	06 August 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 110
Catchwords:	SENTENCING – historical sex offences – sexual offences committed against offender’s daughter – one offence is maintenance of unlawful sexual relationship – approach to sentencing for a ‘statutorily-sanctioned’ duplicitous count
Legislation Cited:	Crimes Act1900 (NSW) ss 59, 61C, 61D, 66EA, 78A Crimes Act1914 (Cth) s 43 Criminal Procedure Act1986 (NSW) s 293A Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A
Cases Cited:	Blundell v The Queen (2008) 70 NSWLR 660 Burr v R [2020] NSWCCA 282 Cheungv The Queen (2001) 209 CLR 1 Chiro v The Queen (2017) 260 CLR 465 EG v R [2015] NSWCCA 21 Gould v R [2021] NSWCCA 92 Hillman v The Queen [2021] NSWCCA 43 Jackson v R [2020] NSWCCA 230 KMC v DPP (SA) (2020) 267 CLR 480 R v A [2021] NSWDC 232 RvGavel (2014) 239 A Crim R 469 R v Hudson (Court of Criminal Appeal (NSW), 30 July 1998, unrep) R v JVP (Court of Criminal Appeal (NSW), 6 November 1995, unrep) R vOlbrich (1999) 199 CLR 270 R v RB (District Court (NSW), 4 June 2021, Latham SC ADCJ, unrep) R v RW (District Court (NSW), 1 April 2021, Gartelmann SC DCJ, unrep) R v VanRyn [2016] NSWCCA 1 R v Varner; R v Holyoak; R v Gallagher (Court of Criminal Appeal (NSW), 29 November 1995, unrep) Savvasv The Queen (1995) 183 CLR 1
Texts Cited:	Nil
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) DAW (offender)
Representation:	Counsel: Mr J Stanhope for the Director of Public Prosecutions (NSW) Ms J Gallagher for the offender Solicitors: Solicitor for Public Prosecutions (NSW) Four Tree Lawyers for the offender
File Number(s):	2018/81157
Publication restriction:	Non Publication Order on the name of the complainant, and any information that may identify the complainant. Pseudonyms have been used for the name of the complainant, the complainant’s family, and the offender.

Count	Offence	Maximum punishment
1.	Between 26 November 1979 and 19 November 1988 at Dora Creek and Capertee, the offender did maintain an…