R v DW - [2024] NSWDC 380

District Court

New South Wales

Medium Neutral Citation: R v DW [2024] NSWDC 380
Hearing dates: 19 April 2024
Decision date: 13 June 2024
Jurisdiction: Criminal
Before: Coleman SC DCJ
Decision:
(1) For the offences to which he has pleaded guilty, the offender is convicted.
(2) The sentence is as follows:
(a) For count 1 (indecent assault person under 10 years), I indicate a term of imprisonment of 2 years and 8 months, which after the 25% discount is 2 years imprisonment. The indicative non-parole period is 1 year imprisonment;
(b) For count 2 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment;
(c) For count 5 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment;
(d) For count 8 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 9 years, which after the 25% discount is 6 years 9 months imprisonment. The indicative non-parole period is 3 years 5 months imprisonment;
(e) For count 10 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment;
(f) For count 11 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment;
(g) For count 13 (indecent assault person under 16 years), I indicate a term of imprisonment of 2 years, which after the 25% discount is 1 year and 6 months imprisonment. The indicative non-parole period is 9 months imprisonment;
(h) For count 14 (commit act of indecency), I indicate a term of imprisonment of 18 months, which after the 25% discount is 13 months imprisonment.
(i) For count 16 (indecent assault person under 16 years), taking into account count 15 on the form 1, I indicate a term of imprisonment of 2 years and 8 months, which after the 25% discount is 2 years imprisonment. The indicative non-parole period is 1 year imprisonment;
(j) For count 17 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment;
(k) For count 18 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment;
(l) For count 20 (sexual intercourse with person under 10 years), taking into account count 23…

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 DW

Details

AGLC: R v DW [2024] NSWDC 380
Case: [2024] NSWDC 380
Decision Date: 13 June 2024

CaseChat Overview and Summary

The case before the court involved an offender, referred to as DW, who had pleaded guilty to various counts of sexual offences against children under the age of 10 and 16. The primary victim in the case was a child under the age of 10 who was under the authority of the offender's grandparents at the time of the offences. The case was heard in the Supreme Court of the state.

The court was required to determine the appropriate sentences for the multiple counts of aggravated sexual assault and indecent assault, taking into account the aggravating factors such as the age of the victim and the authority relationship. The court had to consider the principles of sentencing for sexual offences against children, including the need for denunciation, deterrence, and the protection of the community.

In delivering the sentence, the court took into account the severity and frequency of the offences, the vulnerability of the victim, and the offender's lack of remorse. The court set indicative terms of imprisonment for each count, applying a 25% discount where appropriate, and determined an aggregate term of imprisonment of 20 years with a non-parole period of 10 years. The sentence was backdated to the offender's date of arrest and was set to expire on 2 August 2040. The offender will be eligible for parole release on 2 August 2030.

Orders

Orders of the court

(1) For the offences to which he has pleaded guilty, the offender is convicted.

(2) The sentence is as follows:

(a) For count 1 (indecent assault person under 10 years), I indicate a term of imprisonment of 2 years and 8 months, which after the 25% discount is 2 years imprisonment. The indicative non-parole period is 1 year imprisonment;

(b) For count 2 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment;

(c) For count 5 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment;

(d) For count 8 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 9 years, which after the 25% discount is 6 years 9 months imprisonment. The indicative non-parole period is 3 years 5 months imprisonment;

(e) For count 10 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment;

(f) For count 11 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment;

(g) For count 13 (indecent assault person under 16 years), I indicate a term of imprisonment of 2 years, which after the 25% discount is 1 year and 6 months imprisonment. The indicative non-parole period is 9 months imprisonment;

(h) For count 14 (commit act of indecency), I indicate a term of imprisonment of 18 months, which after the 25% discount is 13 months imprisonment.

(i) For count 16 (indecent assault person under 16 years), taking into account count 15 on the form 1, I indicate a term of imprisonment of 2 years and 8 months, which after the 25% discount is 2 years imprisonment. The indicative non-parole period is 1 year imprisonment;

(j) For count 17 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment;

(k) For count 18 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment;

(l) For count 20 (sexual intercourse with person under 10 years), taking into account count 23 on the form 1, I indicate a term of imprisonment of 12 years, which after the 25% discount is 9 years imprisonment. The indicative non-parole period is 4 years and 6 months imprisonment.

(3) I set an aggregate term of imprisonment of 20 years with a non-parole period of 10 years.

(4) The sentence commences on 3 August 2020 and expires on 2 August 2040.

(5) The offender will be eligible for release to parole on 2 August 2030.

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 DW [2024] NSWDC 380
Hearing dates:	19 April 2024
Decision date:	13 June 2024
Jurisdiction:	Criminal
Before:	Coleman SC DCJ
Decision:	(1) For the offences to which he has pleaded guilty, the offender is convicted. (2) The sentence is as follows: (a) For count 1 (indecent assault person under 10 years), I indicate a term of imprisonment of 2 years and 8 months, which after the 25% discount is 2 years imprisonment. The indicative non-parole period is 1 year imprisonment; (b) For count 2 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment; (c) For count 5 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment; (d) For count 8 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 9 years, which after the 25% discount is 6 years 9 months imprisonment. The indicative non-parole period is 3 years 5 months imprisonment; (e) For count 10 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment; (f) For count 11 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment; (g) For count 13 (indecent assault person under 16 years), I indicate a term of imprisonment of 2 years, which after the 25% discount is 1 year and 6 months imprisonment. The indicative non-parole period is 9 months imprisonment; (h) For count 14 (commit act of indecency), I indicate a term of imprisonment of 18 months, which after the 25% discount is 13 months imprisonment. (i) For count 16 (indecent assault person under 16 years), taking into account count 15 on the form 1, I indicate a term of imprisonment of 2 years and 8 months, which after the 25% discount is 2 years imprisonment. The indicative non-parole period is 1 year imprisonment; (j) For count 17 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment; (k) For count 18 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment; (l) For count 20 (sexual intercourse with person under 10 years), taking into account count 23…