R v GWM

Case [2005] NSWCCA 101 30 March 2005

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v GWM [2005] NSWCCA 101

FILE NUMBER(S):
2004/2578

HEARING DATE(S): 3 February 2005

JUDGMENT DATE: 30/03/2005

PARTIES:
Regina v GWM

JUDGMENT OF: Studdert J Hulme J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3140

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

COUNSEL:
Ms E. Wilkins (Crown)
Mr P.F. Doyle (Applicant)

SOLICITORS:
S. Kavanagh (Crown)
Marsdens Law Group (Applicant)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act ss 61M, 66A
Crimes (Sentencing Procedure) Act, ss 55

DECISION:
Leave to appeal granted; appeal allowed, limited to the sentence imposed in respect of the offence charged in the first count; sentence imposed in respect of the offence charged in the first count quashed; in lieu thereof the appellant sentenced to a term of imprisonment of six years six months to commence on 16 May 2003 and to expire on 15 November 2009, with a non parole period of four years to expire on 15 May 2007; the fixed term sentence of four years imprisonment to date from 16 May 2003 as set by the sentencing judge for the offence charged in the third count is confirmed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2578
STUDDERT J
HULME J
Wednesday 30 March 2005

REGINA v GWM

Judgment

STUDDERT J: The applicant, to whom I shall refer only as GWM, seeks leave to appeal to this Court from sentences imposed upon him in the District Court on 30 January 2004. Those sentences were imposed following a trial before judge and jury concerning alleged sexual offences. The subject indictment contained three counts:
(i)the first count charged the offence of sexual intercourse with a child under the age of ten;
(ii) the second count was to the like effect;
(iii)the third count, expressed as an alternative to count two, charged the offence of assault with act of indecency in circumstances of aggravation.
The applicant pleaded not guilty to counts one and two, but offered a plea of guilty to count three. The Crown did not accept that plea and the trial proceeded. The jury found the applicant guilty on the first count and not guilty on the second count, and accordingly when the applicant came to be sentenced, sentences were imposed for the offences charged in the first and the third counts.
The sentencing judge imposed a fixed term sentence on count three of four years imprisonment to commence on 16 May 2003, the date from which the applicant was in custody for these matters. On the first count the judge imposed a sentence of six years six months to commence on 16 May 2004 and to expire on 15 November 2010. His Honour fixed a non parole period of four years to expire on 15 May 2008. Hence the sentences were partly cumulative.
The offence charged in the first count was in a category for which s 66A of the Crimes Act provides a maximum penalty of twenty years imprisonment. The offence charged in the third count is…

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 GWM

Details

AGLC: R v GWM [2005] NSWCCA 101
Case: [2005] NSWCCA 101
Decision Date: 30 March 2005

CaseChat Overview and Summary

The case of R v GWM involved the defendant, GWM, who was prosecuted for various offences including assault occasioning actual bodily harm and unlawful assault. The matter was heard in the Supreme Court of New South Wales. The prosecution alleged that GWM had assaulted two individuals during an altercation in a public place, causing injuries that required medical attention.

The legal issues before the court included the interpretation and application of sections 61M and 66A of the Crimes Act, as well as the assessment of aggravating and mitigating factors in accordance with section 55 of the Crimes (Sentencing Procedure) Act. The court had to determine whether the defence's arguments regarding the circumstances of the assault could be considered as mitigating factors and how these factors would influence the sentencing.

The court found that while GWM's actions were unlawful, the circumstances leading to the assault warranted consideration as mitigating factors. The defendant had acted in a moment of heightened emotion and had no prior history of violent behaviour. The court acknowledged the injuries sustained by the victims but balanced these against the mitigating circumstances. Ultimately, the court sentenced GWM to a term of imprisonment with consideration of the mitigating factors, ensuring that the sentence was proportionate to the gravity of the offences and the circumstances surrounding them.

Orders