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
Imbornone v R [2017] NSWCCA 144
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 DLW (No. 4) [2020] NSWDC 284
R v King [2009] NSWCCA 117
R v MAK (2006) 167 A Crim R 159
Category: Sentence Parties: Director of Public Prosecutions
Mr DLWRepresentation: Counsel:
Solicitors:
Ms K Tennant for the Director of Public Prosecutions
Mr W Flynn for the offender
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
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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).
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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
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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.
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In partial paraphrase, I found that on a certain night between 23 July 2009 and the end…
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- AGLC
- R v DLW (No. 5) [2020] NSWDC 754
- Case
- [2020] NSWDC 754
- Decision Date
CaseChat Overview and Summary
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
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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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