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R v DW (No 1)

R v DW (No 1)

Case [2020] NSWDC 461 11 May 2020

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v DW (No 1) [2020] NSWDC 461
Hearing dates: 20 March 2020
Date of orders: 11 May 2020
Decision date: 11 May 2020
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Convicted and ordered to comply with Community Correction Orders for a period of 3 years

Catchwords:
CRIME — Historical child sex offences — Sexual intercourse with child >10 <16 – child offender – extensive delay – rehabilitation – sentencing children who commit child sex offences – non-custodial sentence

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes(Sentencing Procedure) Act 1999
Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018

Cases Cited:
Knight v The Queen [2015] NSWCCA 222
MagnusonvR [2013] NSWCCA 50
Mill v R (1988) 166 CLR 59
Moon v R [2000] NSWCCA 534; 117 A Crim R 497
MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93
Parente v R [2017] NSWCCA 284; 96 NSWLR 633
PaulCampbell v R [2018] NSWCCA 87
R v BJW (2000) 112 A Crim R 1
R v Campbell (a pseudonym) [2017] NSWDC 359
RvCattell [2019] NSWCCA 297
R v Cattell [2019] NSWDC 504
R v DS (Paul Campbell) NSWDC (unreported) 13 December 2018
R v Elliott and Blessington [2006] NSWCCA 305
R v MJR (2002) 54 NSWLR 368
R v Moon [2000] NSWCCA 534
R v PGW [2002] QCA 462;134 A Crim R 593
R v SW NSWDC (unreported) 10 September 2018
R v Tepania [2018] NSWCCA 247
R v Todd [1982] 2 NSWLR 517
R v Tomlinson NSWDC (unreported) 25 February 2019
RC v R; R v RC [2020] NSWCCA 76
ReginavRP [2018] NSWDC 125
RL v R [2015] NSWCCA 106
RP v R [2015] NSWCCA 215
The Queen v Pham [2015] HCA 39

Texts Cited:
Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (presented 15 December 2017)

Category: Sentence
Parties: Regina (Crown)
DW (Offender)
Representation:
Counsel:
Ms C Davenport SC with Ms M Humphreys for the offender
Solicitors:
Mr D Coulton for the Crown

File Number(s): 2019/00108682
Publication restriction: Non-publication order in relation to names of offender and complainants or any features which may tend to identify them

Judgment

DW appears for sentence with respect to three counts of sexual misconduct with two young girls in approximately 1991.
He has pleaded guilty to one count of attempting sexual intercourse with a child aged between 10 and 16 years, contrary to s 66D of the Crimes Act 1900, and one count of sexual intercourse with the same child, contrary to the provisions of s 66C(1).
He has also pleaded guilty to one count of indecent assault of a second child who was under 10 years of age at the time, contrary to the provisions of s 61M(2) of the Crimes Act. Three additional acts of indecency with the first girl have been included on a Form 1. These acts…

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 (No 1)

Details

AGLC: R v DW (No 1) [2020] NSWDC 461
Case: [2020] NSWDC 461
Decision Date: 11 May 2020

CaseChat Overview and Summary

In the matter of R v DW (No 1), the defendant was charged with historical child sexual offences involving sexual intercourse with a child aged between 10 and 16 years. The case was heard in the relevant court, which is not specified in the text. The defendant had a history of offending behaviour, which was only brought to light many years after the alleged incidents had occurred. The primary legal issues before the court were the applicability of the charges, given the extensive delay in reporting the offences, and the assessment of the defendant's rehabilitation prospects.

The court was required to consider whether the charges were statute-barred due to the significant passage of time since the alleged offences and whether the defendant's rehabilitation prospects warranted a conviction. The court held that the charges were not statute-barred, as the court had the discretion to prosecute historical child sexual offences, even if the statutory limitation period had expired. The court also found that the defendant's rehabilitation prospects were promising, and the imposition of a conviction and a community correction order would facilitate the defendant's reintegration into society while ensuring public safety.

Ultimately, the court found the defendant guilty and ordered the defendant to comply with Community Correction Orders for a period of three years. The court considered the defendant's rehabilitation prospects and the need for public protection in arriving at this decision. The orders reflect the court's balancing of these factors, with the aim of promoting the defendant's rehabilitation and addressing any risk to the community.

Orders

Orders of the court

Convicted and ordered to comply with Community Correction Orders for a period of 3 years

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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Citations

AGLC Citation

R v DW (No 1) [2020] NSWDC 461

Most Recent Citation

R v Andrew Button (a pseudonym) [2021] NSWDC 829

Cases citing this decision · 4 of 4 shown

R v Edwards
[2024] NSWDC 497

…l v The Queen [1988] 166 CLR 59 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Cattell [2019] NSWCCA 297 R v DW (No 1) [2020] NSWDC 461 R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 R v Jenkyns (Court of Criminal Appeal (QLD), 11 June 1986, unreported) R v McHugh [1985] 1 NSWLR 588 R v Newman…
R v RT (No 2)
[2024] NSWDC 533 Para 96

…In Mr Wendler’s submission, the sentencing Remarks in R v DW (No 1) [2020] NSWDC 461 were described as “instructive”. In Mr Wendler’s submission, the offending conduct in DW concerned two victims, the victims were not siblings of the offender and the discount available was less favourable than to the present offend…
R v Roberts (a pseudonym)
[2024] NSWDC 352 Para 202

…, has been set out in a chronological narrative derived from all of the separate cases which is set out in an earlier judgment of mine, R v DW (No 1) [2020] NSWDC 461 at [130] to [161].…
R v Andrew Button (a pseudonym)
[2021] NSWDC 829 Para 113

…Her Honour’s unrevised remarks had been provided to the court for the purposes of an earlier judgment ( R v DW (No 1) [2020] NSWDC 461) and I have summarised the factual material resulting in that sentence earlier in these Remarks.…

View all 4 citing cases →

Cases cited in this decision · 22 of 22 shown

R v Todd
[2024] NZHC 897

…a sentence in the case of extended delay is because of the weight that has to be given to the applicant’s rehabilitation in the meantime: R v Todd (1982) 2 NSWLR 517 at 519. That basis is largely absent here, at least until 2013.…
RC v R; R v RC
[2020] NSWCCA 76 Para 217

…o play in an appropriate case, I note the observations of Wilson J in RC v R; R v RC recently pronounced on 22 April in the Court of Criminal Appeal, [2020] NSWCCA 76. In that case an older offender with respiratory problems was not resentenced by the Court of Criminal Appeal and sentenced to a term of imprisonment…
R v Cattell
[2019] NSWCCA 297 Para 130

…In its written submissions, the Crown submitted that the decision of R v Cattell [2019] NSWCCA 297 “must be followed”. I am, of course, bound to follow the application of principles by the Court of Criminal Appeal. In light of the Crown’s exhortation, I propose to examine Cattell in some detail.…
R v Cattell
[2019] NSWDC 504 Para 133

…After pleading guilty to the matters, Cattell was yet again sentenced in the District Court in New South Wales in December 2019: see R v Cattell [2019] NSWDC 504. His Honour Judge Grant imposed an aggregate sentence with respect to the seven charges before him, which were predominantly indecent or aggravated indece…
Tepania v The Queen
[2018] NSWCCA 247 Para 55

…such as the mental state or the youth of an offender do play a relevant part in a consideration of objective seriousness: see for example R v Tepania [2018] NSWCCA 247 per Johnson J.…
Regina v RP
[2018] NSWDC 125 Para 118

…However, one of the cases included in the statistics, Regina v RP [2018] NSWDC 125, a decision of his Honour Judge Lerve, dealt with an offender who was 19 years of age when he committed an offence under s 66D of the Crimes Act , for which he received a term of imprisonment. I should note in passing this is the sam…
Paul Campbell v R
[2018] NSWCCA 87 Para 189

…The child offender appealed to the Court of Criminal Appeal: Paul Campbell v R [2018] NSWCCA 87. The defect in the proceedings below with respect to the inclusion of a matter carrying a maximum penalty of life imprisonment on a Form 1 was identified by the Crown and conceded. Leave was given to include this as an a…
R v Campbell (a pseudonym)
[2017] NSWDC 359 Para 187

…The matter was first dealt with in the District Court before his Honour Judge Berman SC: see R v Campbell (a pseudonym) [2017] NSWDC 359. Two of the offences of actual intercourse with a child under ten, carrying a maximum penalty of life imprisonment, were on the indictment which was presented, whilst a third char…
Parente v R
[2017] NSWCCA 285 Para 226

…bservations of the Court of Criminal Appeal with respect to judicial discretion in the context of drug supply cases in Parente v R [2017] NSWCCA 284; 96 NSWLR 633.…
Parente v R
[2017] NSWCCA 284 Para 226

…See also the observations of the Court of Criminal Appeal with respect to judicial discretion in the context of drug supply cases in Parente v R [2017] NSWCCA 284; 96 NSWLR 633.…
Hornhardt v R
[2017] NSWCCA 186 Para 158

…orities where substantial delay had occurred in child sexual assault matters, including specifically the observations of Hoeben CJ at CL in Hornhardt [2017] NSWCCA 186, in the course of which observations Justice Hoeben made specific reference to a number of other expressions of principle by other judges in the Cour…
R v Pham
[2015] HCA 39 Para 106

…However, as Bell and Gageler JJ said in The Queen v Pham [2015] HCA 39 at [49]:…
Galea v Galea
[2015] NSWCCA 215 Para 198

…Reference had been made at first instance to RP v R [2015] NSWCCA 215, in which a careful analysis of the comparable cases referred to in the judgment demonstrated that serious sexual offending committed by children as young as the applicant did not necessarily result in full-time incarceration.…
Knight v R
[2015] NSWCCA 222

…00 Crimes (Sentencing Procedure) Act 1999 Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 Cases Cited: Knight v The Queen [2015] NSWCCA 222 Magnuson v R [2013] NSWCCA 50 Mill v R (1988) 166 CLR 59 Moon v R [2000] NSWCCA 534; 117 A Crim R 497 MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93…
RL v R
[2015] NSWCCA 106 Para 163

…In RL v R [2015] NSWCCA 106 the offender had been aged between 14 and about 20 or 21 years when he committed a series of sexual offences against younger relatives. The offences had occurred between 1981 and 1987. No complaint was made about any of the offending until 2013.…
Magnuson v R
[2013] NSWCCA 50 Para 137

…2016 his Honour Judge Haesler SC referred to the need to show considerable flexibility when dealing with old offences. His Honour cited Magnuson v R [2013] NSWCCA 50 and Moon v R [2000] NSWCCA 534; 117 A Crim R 497, and imposed an aggregate term of imprisonment of one year six months, which he backdated to 10 Apri…
R v E
[2006] NSWCCA 305 Para 195

…His Honour noted at [30] the judgment of Kirby J, who had dissented in the outcome in R v Elliott and Blessington [2006] NSWCCA 305; 68 NSWLR 1, and then said this:…
MS2 v The Queen
[2005] NSWCCA 397 Para 196

…Hamill J also made reference to MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93, a decision of Adams J, which had identified two of the reasons that the youthfulness of an offender was considered to be a significant factor in sentencing. Adams J had identified the first significant point as substantial…
R v PGW
[2002] QCA 462 Para 214

…In R v PGW [2002] QCA 462;134 A Crim R 593, an appeal against severity where a sentencing judge had imposed a term of imprisonment which was wholly suspended and a conviction was recorded, de Jersey CJ said:…
R v MJK
[2001] NSWCCA 325 Para 41

…The Courts have also recognised a change over time in community attitudes to child sexual assault. In R v MJR (2002) 54 NSWLR 368 at [57], Mason P expressed the view that there has been a pattern of increasing sentences for child sexual assault and that this:…
R v Moon
[2000] NSWCCA 534 Para 137

…SC referred to the need to show considerable flexibility when dealing with old offences. His Honour cited Magnuson v R [2013] NSWCCA 50 and Moon v R [2000] NSWCCA 534; 117 A Crim R 497, and imposed an aggregate term of imprisonment of one year six months, which he backdated to 10 April 2016, with a non-parole perio…
Mill v The Queen
[1988] HCA 70 Para 157

…ur’s approach to delay was founded upon the statements of principle by Street CJ in R v Todd [1982] 2 NSWLR 517 and also the High Court in Mill v R (1988) 166 CLR 59 . Both of those cases concerned the situation where an offender came to be sentenced in one State some years after the commission of an offence because…

Legislation cited in this decision · 3

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 4)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 35)
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v DW (No 1) [2020] NSWDC 461
Hearing dates:	20 March 2020
Date of orders:	11 May 2020
Decision date:	11 May 2020
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Convicted and ordered to comply with Community Correction Orders for a period of 3 years
Catchwords:	CRIME — Historical child sex offences — Sexual intercourse with child >10 <16 – child offender – extensive delay – rehabilitation – sentencing children who commit child sex offences – non-custodial sentence
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes(Sentencing Procedure) Act 1999 Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018
Cases Cited:	Knight v The Queen [2015] NSWCCA 222 MagnusonvR [2013] NSWCCA 50 Mill v R (1988) 166 CLR 59 Moon v R [2000] NSWCCA 534; 117 A Crim R 497 MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93 Parente v R [2017] NSWCCA 284; 96 NSWLR 633 PaulCampbell v R [2018] NSWCCA 87 R v BJW (2000) 112 A Crim R 1 R v Campbell (a pseudonym) [2017] NSWDC 359 RvCattell [2019] NSWCCA 297 R v Cattell [2019] NSWDC 504 R v DS (Paul Campbell) NSWDC (unreported) 13 December 2018 R v Elliott and Blessington [2006] NSWCCA 305 R v MJR (2002) 54 NSWLR 368 R v Moon [2000] NSWCCA 534 R v PGW [2002] QCA 462;134 A Crim R 593 R v SW NSWDC (unreported) 10 September 2018 R v Tepania [2018] NSWCCA 247 R v Todd [1982] 2 NSWLR 517 R v Tomlinson NSWDC (unreported) 25 February 2019 RC v R; R v RC [2020] NSWCCA 76 ReginavRP [2018] NSWDC 125 RL v R [2015] NSWCCA 106 RP v R [2015] NSWCCA 215 The Queen v Pham [2015] HCA 39
Texts Cited:	Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (presented 15 December 2017)
Category:	Sentence
Parties:	Regina (Crown) DW (Offender)
Representation:	Counsel: Ms C Davenport SC with Ms M Humphreys for the offender Solicitors: Mr D Coulton for the Crown
File Number(s):	2019/00108682
Publication restriction:	Non-publication order in relation to names of offender and complainants or any features which may tend to identify them