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 JWednesday 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…
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- AGLC
- R v GWM [2005] NSWCCA 101
- Case
- [2005] NSWCCA 101
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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
Established by: STUDDERT J
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