District Court
New South Wales
Medium Neutral Citation: R v DW (No 2) [2020] NSWDC 462 Hearing dates: 29 May 2020 Date of orders: 29 May 2020 Decision date: 29 May 2020 Jurisdiction: Criminal Before: Sutherland SC DCJ Decision: Pursuant to s 3C(1) of the Child Protection (Offenders Registration) Act2000, the offender is not to be treated as a registrable person for the purposes of that Act in respect of the offences for which he was convicted and sentenced on 11 May 2020
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 – offender declared a non-registerable person
Legislation Cited: Cases Cited: KhannavTheCommissioner of Police [2007] NSWSC 17
Category: Procedural rulings Parties: Regina (Crown)
DW (Offender)Representation: Counsel:
Solicitors:
Ms C Davenport SC with Ms M Humphreys for the offender
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
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This matter comes back today pursuant to what at common law was described as the “slip rule” and now covered by statute in s 43 of the Crimes (Sentencing Procedure) Act 1999:
43 Court may reopen proceedings to correct sentencing errors
(1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has—
(a) imposed a penalty that is contrary to law, or
(b) failed to impose a penalty that is required to be imposed by law,
and so applies whether or not a person has been convicted of an offence in those proceedings.
(2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard—
(a) may impose a penalty that is in accordance with the law, and
(b) if necessary, may amend any relevant conviction or order.
(3) For the purposes of this section, the court—
(a) may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person’s arrest, or
(b) if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person’s arrest.
(4) Subject to subsection (5), nothing in this section affects any right of appeal.
(5) For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed.
(6) In this section—
impose…
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- AGLC
- R v DW (No 2) [2020] NSWDC 462
- Case
- [2020] NSWDC 462
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the extensive delay in bringing the case to trial and DW's demonstrated rehabilitation should influence the decision on registration. The court had to balance the principles of justice, deterrence, and rehabilitation in making its determination. It was crucial to consider the circumstances of the offence, the age of the offender at the time of the offence, and the potential impact of registration on DW's future life.
The court found that the extensive delay in bringing the case to trial, coupled with DW's extensive rehabilitation and the fact that DW was also a child at the time of the offence, warranted a departure from the usual requirements of the Child Protection (Offenders Registration) Act 2000. The court considered these factors to be significant mitigating circumstances that supported a decision not to treat DW as a registrable person. The court's decision was influenced by the need to ensure that the outcome was just and proportionate, taking into account the unique circumstances of the case.
In light of the above, the court made an order pursuant to section 3C(1) of the Child Protection (Offenders Registration) Act 2000 that DW is not to be treated as a registrable person for the offences for which he was convicted and sentenced on 11 May 2020. This decision reflects the court's consideration of the extensive delay, DW's rehabilitation, and his age at the time of the offence, which collectively influenced the court's determination.
Orders
Orders of the court
Pursuant to s 3C(1) of the Child Protection (Offenders Registration) Act 2000, the offender is not to be treated as a registrable person for the purposes of that Act in respect of the offences for which he was convicted and sentenced on 11 May 2020
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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