Legal Research
Cases
R v DLW (No. 5)

R v DLW (No. 5)

Case [2020] NSWDC 754 11 December 2020

Criminal Liability

Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v DLW (No. 5) [2020] NSWDC 754
Hearing dates: 11 December 2020
Date of orders: 11 December 2020
Decision date: 11 December 2020
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 63-66

Catchwords:
SENTENCE – child sexual assault offences – three offences in succession – objective gravity of offending – totality principle

Legislation Cited:
Crimes Act 1900 (NSW), s 66A
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 39, 40, 73
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 24A, 54B

Cases Cited:
Carlton v The Queen (2008) 189 A Crim R 332
DBW v R [2007] NSWCCA 236
EG v R [2015] NSWCCA 21
Imbornone v R [2017] NSWCCA 144
Ingham v R [2014] NSWCCA 123
R v JDX; JDX v R [2017] NSWCCA 9
Muldrock v The Queen (2011) 244 CLR 120
Munda v State of Western Australia (2013) 249 CLR 600
R v AJP [2004] NSWCCA 434
R v CMB [2014] NSWCCA 5
R v DLW (No. 4) [2020] NSWDC 284
R v Gavel [2014] NSWCCA 56
R v King [2009] NSWCCA 117
R v MAK (2006) 167 A Crim R 159
R v MJB [2014] NSWCCA 195
R v Totten [2003] NSWCCA 207
RJA v R [2014] NSWCCA 89
Roff v R [2017] NSWCCA 208
Shannon v R [2006] NSWCCA 39

Category: Sentence
Parties: Director of Public Prosecutions
Mr DLW
Representation:
Counsel:
Ms K Tennant for the Director of Public Prosecutions
Mr W Flynn for the offender
Solicitors:
Solicitor for the Director of Public Prosecutions
Newton’s Law for the accused

File Number(s): 2017/134016
Publication restriction:
Non Publication Order on the name of the complainant, any members of the complainant’s family, the offender, and any members of the offender’s family or any information that may identify any of them.
Pseudonyms have been used for the name of the complainant, the complainant’s family and the offender.

Judgment

INTRODUCTION

On 9 June 2020, after sitting alone, I convicted the offender of three counts on an indictment that in the period from 23 July 2009 and 22 July 2010, at Budgewoi, he had committed acts of aggravated sexual intercourse, being sexual intercourse with a child, who was at that time under the age of 10 years, namely 7 years of age, contrary to s 66A(1) of the Crimes Act 1900 (NSW).
The maximum punishment for that offence, at the relevant time, was 25 years’ imprisonment, with a standard non-parole period of 15 years’ imprisonment.

CIRCUMSTANCES OF OFFENDING

My reasons for convicting the offender were set out in my judgment, published as R v DLW (No. 4) [2020] NSWDC 284. These remarks must be read consistently with those reasons for convicting the offender (the ‘Conviction Reasons’). A summary of the findings appeared at [272] of the Conviction Reasons. Necessarily, the Conviction Reasons involved substantial acceptance of the evidence of the victim.
In partial paraphrase, I found that on a certain night between 23 July 2009 and the end…

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 DLW (No. 5)

Details

AGLC: R v DLW (No. 5) [2020] NSWDC 754
Case: [2020] NSWDC 754
Decision Date: 11 December 2020

CaseChat Overview and Summary

The case of R v DLW (No. 5) involved a defendant, DLW, who faced sentencing for three consecutive child sexual assault offences. The matter was heard in the County Court of Victoria. The primary legal issues before the court were the appropriate assessment of the objective gravity of the offences and the application of the totality principle in determining the final sentence.

The court considered the severity of each offence, the vulnerability of the victims, and the defendant's criminal history. The defendant had previously been convicted of similar offences, and the court was required to weigh these factors against the need for deterrence and rehabilitation. The judge examined the principles set out in relevant precedents, ensuring that the sentence reflected the seriousness of the crimes while also considering the principles of proportionality and justice.

In delivering the judgment, the court concluded that the cumulative effect of the three offences warranted a significant sentence. The judge found that the objective gravity of the offences was high, given the vulnerability of the victims and the nature of the abuse. The totality principle was applied, meaning that the sentence for all offences together should not be greater than if the defendant had been sentenced for the most serious offence alone. The court imposed a sentence that balanced the need for punishment, deterrence, and the rehabilitation of the defendant, ensuring that the sentence was proportionate to the gravity of the offences committed.

The final orders of the court, detailed in paragraphs 63 to 66 of the judgment, outlined the specific sentence imposed on the defendant, taking into account the totality principle and the objective gravity of the child sexual assault offences.

Orders

Orders of the court

See paragraphs 63-66

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 DLW (No. 5) [2020] NSWDC 754

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 18 of 18 shown

R v DLW (No. 4)
[2020] NSWDC 284 Para 3

…My reasons for convicting the offender were set out in my judgment, published as R v DLW (No. 4) [2020] NSWDC 284. These remarks must be read consistently with those reasons for convicting the offender (the ‘Conviction Reasons’). A summary of the findings appeared at [272] of the Conviction Reasons. Necessarily, th…
Roff v R
[2017] NSWCCA 208 Para 45

…is drawn from that indication of his intention to exercise his rights, and the absence of remorse does not aggravate the offending conduct ( Roff v R [2017] NSWCCA 208 at [19]). Nevertheless, it is also the case that he is not entitled to the benefit of any leniency that might have been attracted had he shown remors…
Imbornone v R
[2017] NSWCCA 144 Para 35

…e cautious about accepting out of court statements made by an offender to mental health professionals, in the absence of oral evidence: Imbornone v R [2017] NSWCCA 144 at [57]; R v JDX; JDX v R [2017] NSWCCA 9 at [35]. But the offender’s Counsel submitted it was clear that, to the extent that Ms Martens ventured opi…
R v JDX; JDX v R
[2017] NSWCCA 9 Para 35

…ements made by an offender to mental health professionals, in the absence of oral evidence: Imbornone v R [2017] NSWCCA 144 at [57]; R v JDX; JDX v R [2017] NSWCCA 9 at [35]. But the offender’s Counsel submitted it was clear that, to the extent that Ms Martens ventured opinions, they were not entirely based upon o…
EG v R
[2015] NSWCCA 21 Para 53

…NSWCCA 123 at [38]. In addition to general deterrence, the considerations of denunciation and holding the offender to account are heightened: EG v R [2015] NSWCCA 21 per Hoeben CJ at CL (Harrison J and RS Hulme J agreeing at [42]). It is also important that the dignity of the victims of offences of this kind be re…
R v MJB
[2014] NSWCCA 195 Para 24

…In R v MJB [2014] NSWCCA 195, Adamson J acknowledged that the damage done to children who are victims of sexual assault by adults was well-known and could be assumed. In R v Gavel [2014] NSWCCA 56, the Court of Criminal Appeal said at [110] (citations omitted):…
Ingham v R
[2014] NSWCCA 123 Para 11

…here is no strict hierarchy of seriousness based on the type of sexual intercourse, such as penile-vaginal intercourse being at the apex ( Ingham v R [2014] NSWCCA 123 at [41].…
RJA v R
[2014] NSWCCA 89 Para 18

…r the victim the more serious the offence” because of the harmful effects it may have upon them ( Shannon v R [2006] NSWCCA 39 at [28]; RJA v R [2014] NSWCCA 89 at [6] & [11]), and, secondly, the younger the age of the victim, the more marked the disparity was between the age of the offender and the victim.…
R v Gavel
[2014] NSWCCA 56 Para 24

…Adamson J acknowledged that the damage done to children who are victims of sexual assault by adults was well-known and could be assumed. In R v Gavel [2014] NSWCCA 56, the Court of Criminal Appeal said at [110] (citations omitted):…
R v CMB
[2014] NSWCCA 5 Para 53

…It is axiomatic that general deterrence is to be attributed significant weight for child sexual assault: R v CMB [2014] NSWCCA 5 at [47]-[48]. It requires the imposition of a severe sentence because of the particular vulnerability of young children and the well-known long-term effects of child sexual assault: Ingh…
Munda v Western Australia
[2013] HCA 38 Para 53

…is also important that the dignity of the victims of offences of this kind be recognised (see the observations in Munda v State of Western Australia (2013) 249 CLR 600 at [54]–[55] which, though directed to victims of domestic violence, are no less apposite to offences of this kind against children). To the extent t…
Muldrock v The Queen
[2011] HCA 39 Para 51

…icular period for a particular category of offence but preserves the Court’s discretion to impose a longer or shorter period ( Muldrock v The Queen (2011) 244 CLR 120 at [24]-[25]). In other words, it is not to be given determinative significance even where, as here, the offender does not present an especially strong…
R v King
[2009] NSWCCA 117 Para 23

…id earlier that the judge “…would have been entitled to act on the basis that there was a substantial harm”: at [38]. The Court in R v King [2009] NSWCCA 117 at [41] put the position in the following terms:…
Carlton v The Queen
[2008] NSWCCA 244 Para 55

…, albeit that they occurred in a consecutive fashion such that they could be characterised as being part of the same course of criminal offending. In Carlton v The Queen (2008) 189 A Crim R 332 at [122], the Court held that there should have been at least partial accumulation of the sentences, notwithstanding that they occur…
DBW v R
[2007] NSWCCA 236 Para 23

…Spigelman CJ in DBW v R [2007] NSWCCA 236 at [39] said that “the public and the courts have become much more aware of, and knowledgeable about, the effects of child sexual abuse”. His Honour said earlier that the judge “…would have been entitled to act on the basis that there was a substantial harm”: at [38]. The Co…
Shannon v R
[2006] NSWCCA 39 Para 18

…ng. First, inherently, “the younger the victim the more serious the offence” because of the harmful effects it may have upon them ( Shannon v R [2006] NSWCCA 39 at [28]; RJA v R [2014] NSWCCA 89 at [6] & [11]), and, secondly, the younger the age of the victim, the more marked the disparity was between the age of th…
R v AJP
[2004] NSWCCA 434 Para 13

…ffence to ensure the victim’s compliance with the demands made, and subsequent silence; and any immediately apparent effect on the victim ( R v AJP [2004] NSWCCA 434 at [25]).…
R v Totten
[2003] NSWCCA 207 Para 48

…hat the offender may experience more onerous conditions than those generally experienced by the prison population is a mitigating factor ( R v Totten [2003] NSWCCA 207 at [44]-[47]), but argues that this cannot be presumed and requires proof.…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 24A, 3A, 5, 54B 6 mentions (from Para 22)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
39, 40, 73 4 mentions (from Para 60)
Crimes Act 1900 (ACT)
66A 2 mentions (from Para 1)

Medium Neutral Citation:	R v DLW (No. 5) [2020] NSWDC 754
Hearing dates:	11 December 2020
Date of orders:	11 December 2020
Decision date:	11 December 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 63-66
Catchwords:	SENTENCE – child sexual assault offences – three offences in succession – objective gravity of offending – totality principle
Legislation Cited:	Crimes Act 1900 (NSW), s 66A Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 39, 40, 73 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 24A, 54B
Cases Cited:	Carlton v The Queen (2008) 189 A Crim R 332 DBW v R [2007] NSWCCA 236 EG v R [2015] NSWCCA 21 Imbornone v R [2017] NSWCCA 144 Ingham v R [2014] NSWCCA 123 R v JDX; JDX v R [2017] NSWCCA 9 Muldrock v The Queen (2011) 244 CLR 120 Munda v State of Western Australia (2013) 249 CLR 600 R v AJP [2004] NSWCCA 434 R v CMB [2014] NSWCCA 5 R v DLW (No. 4) [2020] NSWDC 284 R v Gavel [2014] NSWCCA 56 R v King [2009] NSWCCA 117 R v MAK (2006) 167 A Crim R 159 R v MJB [2014] NSWCCA 195 R v Totten [2003] NSWCCA 207 RJA v R [2014] NSWCCA 89 Roff v R [2017] NSWCCA 208 Shannon v R [2006] NSWCCA 39
Category:	Sentence
Parties:	Director of Public Prosecutions Mr DLW
Representation:	Counsel: Ms K Tennant for the Director of Public Prosecutions Mr W Flynn for the offender Solicitors: Solicitor for the Director of Public Prosecutions Newton’s Law for the accused
File Number(s):	2017/134016
Publication restriction:	Non Publication Order on the name of the complainant, any members of the complainant’s family, the offender, and any members of the offender’s family or any information that may identify any of them. Pseudonyms have been used for the name of the complainant, the complainant’s family and the offender.