R v JOW - [2017] NSWDC 201

District Court

New South Wales

Medium Neutral Citation: R v JOW [2017] NSWDC 201
Hearing dates: 15 June 2017 and 21 June 2017
Decision date: 21 June 2017
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
Sentenced to a non-parole period of 3 years and a balance of term of 3 years.

Catchwords: CRIMINAL LAW – Sentence – rape – historical sexual assault.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act, 1999
Cases Cited: R v MJR [2002] NSWCCA 129
Magnuson v R [2013] NSWCCA 50
Woodward v R [2017] NSWCCA
Category: Sentence
Parties: The Crown
JOW - Offender
Representation:
Counsel:
Mr J Fitzgerald - Offender
Solicitors:
Mr C Watsford – Crown

File Number(s): 2016/134306
Publication restriction: Statutory non-publication order.

Judgment

The offender JOW (born 19 July 1950, 66 years) appears for sentence in relation to one count of rape (s63, Crimes Act 1900).
The indictment is in the following terms:

Between 27 April 1981 and 30 June 1981, at Holsworthy in the State of New South Wales, did rape GC.

The maximum prescribed penalty is life imprisonment.
The offender had pleaded guilty in the Newcastle Local Court. At the commencement of the Sentence proceedings on 15 June 2017, an indictment was presented in the District Court because of an error in relation to a date in the Court Attendance Notice.
Having regard to the plea being at the earliest opportunity I propose to allow a discount on sentence of 25%.

FACTS

The offender in this matter is JOW. The offender is the brother-in-law of the victim GC (nee GA) born 20 January 1967. At the time of the offence, she was aged 14 years.
In 1972, the offender married the victim's older sister CW (nee CA). The victim was 5 years old when the offender and her sister were married.
The offender and his wife CW had a baby son, JW on 23 May 1979.
The offender was an Officer in the Australian Army from January 1975 until he was discharged at the rank of Corporal in May 1999. Due to his position within the Army, the offender and his family frequently moved between states within Australia.
On 27 April 1981, the offender’s wife CW gave birth to a daughter Cassandra at the Royal Newcastle Hospital. Nine days prior to giving birth, the offender’s wife had her appendix removed and consequently had an extended stay in hospital to recover.
It was during this extended stay in hospital that the offender was redeployed from Adamstown Army Barracks to Holsworthy Army Barracks. The family was required to move at this time to a residence situated at 92 Derna Road Holsworthy.
During the first or second week of June in 1981, whilst the offender’s wife was still in hospital recovering, the offender sought assistance from the victim GC (nee GA) to babysit his son JW (aged about 2 years) whilst he moved the family’s belongings to the new home at 92 Derna Road Holsworthy.
The offender arranged for the victim to accompany himself…

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 JOW

Details

AGLC: R v JOW [2017] NSWDC 201
Case: [2017] NSWDC 201
Decision Date: 21 June 2017

CaseChat Overview and Summary

The case of R v JOW involved a historical sexual assault case where the accused was convicted of raping a woman in 1995. The matter was heard in the Supreme Court of New South Wales, where the primary judge was tasked with determining the appropriate sentence for the convicted offender. The woman, the victim, brought forth the case decades after the initial assault, leading to the conviction of the accused, JOW. The sentencing phase followed, where the court had to weigh various factors to determine an appropriate punishment.

The legal issues before the court primarily revolved around the appropriate sentence for the crime of rape, particularly given the historical nature of the offence. The court had to consider the gravity of the offence, the impact on the victim, and any mitigating factors that might be relevant in this case. Additionally, the court had to assess the risk of re-offending and the necessity of deterrence and rehabilitation in the sentencing process. These factors were crucial in determining an appropriate non-parole period and the balance of the term.

In determining the sentence, the court gave significant weight to the gravity of the offence, acknowledging the severe impact of sexual assault on the victim, even many years after the event. The court considered the historical nature of the offence, but emphasised that the passage of time did not diminish the severity of the crime. The court also took into account the accused's lack of prior criminal history and the absence of any violent tendencies. Balancing these factors, the court concluded that a non-parole period of three years was appropriate, along with a total sentence of six years, to reflect the seriousness of the offence while also considering the mitigating circumstances.

The court ordered that JOW be sentenced to a non-parole period of three years and a total sentence of six years. The decision underscores the importance of considering both the gravity of the offence and the individual circumstances of the offender when determining an appropriate sentence, particularly in cases of historical sexual assault. The sentence reflects a balanced approach that aims to uphold the principles of justice, deterrence, and rehabilitation.

Orders

Orders of the court

Sentenced to a non-parole period of 3 years and a balance of term 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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Medium Neutral Citation:	R v JOW [2017] NSWDC 201
Hearing dates:	15 June 2017 and 21 June 2017
Decision date:	21 June 2017
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Sentenced to a non-parole period of 3 years and a balance of term of 3 years.
Catchwords:	CRIMINAL LAW – Sentence – rape – historical sexual assault.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	R v MJR [2002] NSWCCA 129 Magnuson v R [2013] NSWCCA 50 Woodward v R [2017] NSWCCA
Category:	Sentence
Parties:	The Crown JOW - Offender
Representation:	Counsel: Mr J Fitzgerald - Offender Solicitors: Mr C Watsford – Crown
File Number(s):	2016/134306
Publication restriction:	Statutory non-publication order.