R v HW

Case [2024] NSWDC 479 16 October 2024

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v HW [2024] NSWDC 479
Hearing dates: 20 September 2024
Date of orders: 16 October 2024
Decision date: 16 October 2024
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see paragraphs [109] – [114]

Catchwords:
Sentence – child sexual assault – plea guilty – remorse – finding offender meets criteria for paedophilic disorder – 2 victims – relevance of youth for earlier offending – offender assaulted in custody – custody more onerous – extra curial punishment.

Legislation Cited:
Crimes Act, 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bravo v R [2015] NSWCCA 302
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Jolly v R [2013] NSWCCA 76
Locke v R (2010) 207 A Crim R 34
Mills v R [2017] NSWCCA 87
Mills v R [2017] NSWCCA 87
MLP v R (2006) 164 A Crim R 93
Muldrock v The Queen [2011] HCA 39
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v KT [2008] NSWCCA 51
R v PGM [2006] NSWCCA 310
RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137
The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002, (2002) 56 NSWLR 146.

Category: Sentence
Parties: Rex
HW
Representation:
Counsel:
Mr A Dixon for the Crown
Mr M Davies, Public Defender
Solicitors:
Office of the Director of Public Prosecutions
Legal Aid Commission NSW

File Number(s): 2023/27117, 2023/173787
Publication restriction: There is to be no publication of the names of the complainants nor anything that may tend to identify them.

REMARKS ON SENTENCE

The offender was committed for sentence from the Wagga Wagga District Court on 15 May 2024 in respect of a number of child sexual assault charges, namely:

H94127658
Sequence 2: Aggravated Indecent Assault (victim under 16 years of age), contrary to s 61M(2) of the Crimes Act, 1900
Sequence 4: Sexual Intercourse with a Child Under 10 years of age, contrary to s 66A(1) of the Crimes Act
Sequence 7: Aggravated Indecent Assault (victim under 16 years of age), contrary to s 61M(2) of the Crimes Act, and
Sequence 11: Sexual Intercourse with a Child between 14 and 16 years, contrary to s 66C(3) of the Crimes Act.
H94202078
Sequence 1: Sexual Intercourse with Child Under 10 years of age, contrary to s 66A(1) of the Crimes Act
Sequence 3: Sexual Intercourse with Child Under 10 years of age, contrary to s 66A(1) of the Crimes Act, and
Sequence 5: Sexual Intercourse with Child Under 10 years of age, contrary to s 66A(1) of the Crimes Act.

In respect of Sequence 4 on H94127658 the offender asks the court when passing sentence to take into account two matters on a Form 1 document, namely one charge of Aggravated Indecent Assault contrary to s 61M(2) of the Crimes Act and a charge of Produce Child Abuse Material contrary to…

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 HW

Details

AGLC: R v HW [2024] NSWDC 479
Case: [2024] NSWDC 479
Decision Date: 16 October 2024

CaseChat Overview and Summary

The accused, HW, was convicted in the County Court of Victoria for sexually assaulting two children. HW pleaded guilty to the charges. The case was transferred to the Supreme Court of Victoria for the purpose of sentencing. The primary concern for the court was determining an appropriate sentence for HW, considering his remorse, the nature of the offences, and the presence of a paedophilic disorder.

The court had to weigh several factors, including the gravity of the offences, the extent of HW's remorse, and the impact on the victims. The court also considered the relevance of HW's youth at the time of his earlier offending and the circumstances surrounding his assault in custody. The court examined the sentencing principles applicable to such cases, including the need for general and specific deterrence, and the importance of ensuring that the punishment is proportionate to the crime.

The court found that HW’s remorse was genuine, though it was not sufficient to warrant a significantly reduced sentence. The court determined that the aggravating factors, such as the number of victims and the nature of the offences, outweighed the mitigating factors. The court also took into account the additional punishment HW had already endured in custody. Ultimately, the court decided that HW should be sentenced to a term of imprisonment, with specific consideration given to his disorder and the need for rehabilitation.

The court imposed a sentence, taking into account the totality of the circumstances. HW was sentenced to a period of imprisonment with specific conditions aimed at addressing his disorder and facilitating his rehabilitation. The sentence also reflected the need for general and specific deterrence, as well as the need to provide some measure of protection to the community.

Orders

Orders of the court

Sentenced – see paragraphs [109] – [114]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v HW [2024] NSWDC 479

Cases Citing This Decision

No citing cases yet.

Cases Cited

Mills v R [2017] NSWCCA 87
Citation 1 (Para 13)

…In Mills v R [2017] NSWCCA 87 , R A Hulme J (Leeming JA and Beech-Jones J agreeing), in addition to referring again to Grove J’s statement in Saddler , said:…
Bravo v R [2015] NSWCCA 302
Citation 2 (Para 11)

…In Bravo v R [2015] NSWCCA 302 Hulme J (Beazley P, Johnson J agreeing) said at [42]:…
Filippou v The Queen [2015] HCA 29
Citation 3 (Para 66)

…tter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established ( Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectiv…
Simpson v R [2014] NSWCCA 23
Citation 4 (Para 54)

…be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”…
Doe v R [2013] NSWCCA 248
Citation 5 (Para 54)

…bjective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”…
Bugmy v The Queen [2013] HCA 37
Citation 6 (Para 69)

…d. In the absence of any further detail I am not prepared to make a finding that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened in this case.…
Mammone v R [2013] NSWCCA 95
Citation 7 (Para 35)

…ich are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], “In plain language, it does not make what has been done…
Jolly v R [2013] NSWCCA 76
Citation 8 (Para 9)

…In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:…
Muldrock v The Queen [2011] HCA 39
Citation 9 (Para 64)

…or intellectual disability and the offending. I do not consider the principles enunciated by the plurality in the High Court in Muldrock v The Queen [2011] HCA 39 (particularly at [54]) or those enunciated by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] to be enlivened. In fairn…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 10 (Para 64)

…ty in the High Court in Muldrock v The Queen [2011] HCA 39 (particularly at [54]) or those enunciated by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] to be enlivened. In fairness I did not understand Mr Davies on behalf of the offender to advance such a submission.…
R v King [2009] NSWCCA 117
Citation 11 (Para 36)

…tercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).”…
Saddler v R [2009] NSWCCA 83
Citation 12

…These arguments are akin to saying, “the offence is less serious because it could have been more serious”. As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452: ‘[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offendin…
RJA v R [2008] NSWCCA 137
Citation 13 (Para 10)

…e younger the victim the more serious the offence will be regarded – see for example R v AJP at [35], R v PGM [2006] NSWCCA 310 at [36] and RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 at [14].…
KT v R [2008] NSWCCA 51
Citation 14 (Para 68)

…remaining sequences occurred when he was 22 years of age. In his comprehensive and helpful submissions Mr Davies refers me to the decision of R v KT [2008] NSWCCA 51 at [23] per McClellan CJ at CL. That part of the judgment is:…
R v PGM [2006] NSWCCA 310
Citation 15 (Para 10)

…Generally, the younger the victim the more serious the offence will be regarded – see for example R v AJP at [35], R v PGM [2006] NSWCCA 310 at [36] and RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 at [14].…
MS2 v The Queen [2005] NSWCCA 397
Citation 16 (Para 61)

…the criminality involved will be less than if the same offence was committed by an adult. ( Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]). “…
R v AJP [2004] NSWCCA 434
Citation 17 (Para 8)

…Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 18 (Para 3)

…on Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 , otherwise known as the Guideline Judgment on Form 1 matters reported at (2002) 56 NSWLR 146.…
Ryan v The Queen [2001] HCA 21
Citation 19 (Para 49)

…far as child sexual assault offending is concerned. In oral submission Mr Davies referred the court to the judgment of Kirby J in Ryan v The Queen (2001) 206 CLR 267 at [118]:…
R v Hearne [2001] NSWCCA 37
Citation 20 (Para 25)

…ch of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. ( R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence ( Hearne at [24]). Whe…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 54)
Criminal Appeal Act 1912 (NSW)
1 mention

Medium Neutral Citation:	R v HW [2024] NSWDC 479
Hearing dates:	20 September 2024
Date of orders:	16 October 2024
Decision date:	16 October 2024
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see paragraphs [109] – [114]
Catchwords:	Sentence – child sexual assault – plea guilty – remorse – finding offender meets criteria for paedophilic disorder – 2 victims – relevance of youth for earlier offending – offender assaulted in custody – custody more onerous – extra curial punishment.
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bravo v R [2015] NSWCCA 302 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Jolly v R [2013] NSWCCA 76 Locke v R (2010) 207 A Crim R 34 Mills v R [2017] NSWCCA 87 Mills v R [2017] NSWCCA 87 MLP v R (2006) 164 A Crim R 93 Muldrock v The Queen [2011] HCA 39 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v KT [2008] NSWCCA 51 R v PGM [2006] NSWCCA 310 RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002, (2002) 56 NSWLR 146.
Category:	Sentence
Parties:	Rex HW
Representation:	Counsel: Mr A Dixon for the Crown Mr M Davies, Public Defender Solicitors: Office of the Director of Public Prosecutions Legal Aid Commission NSW
File Number(s):	2023/27117, 2023/173787
Publication restriction:	There is to be no publication of the names of the complainants nor anything that may tend to identify them.