R v KW - [2018] NSWDC 209

District Court

New South Wales

Medium Neutral Citation: R v KW [2018] NSWDC 209
Hearing dates: 20 July 2018
Decision date: 03 August 2018
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full time custodial sentence. For orders see [121]

Catchwords: Multiple counts of sexual intercourse with offender’s own children under 10 years; possess child abuse material; aggregate sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Berryman v R [2017] NSWCCA 297
DJM v R [2013] NSWCCA 101
JM v R [2014] NSWCCA 297
LS v R [2012] NSWCCA 236
MRW v R [2011] NSWCCA 260
R v Booth [2009] NSWCCA 89
R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
R v Gavel [2019] NSWCCA 56
R v Van Ryn [2016] NSWCCA 1
Category: Sentence
Parties: NSW Police Prosecution (Cth Crown)
KW (Offender)
Representation: Counsel:
Mr P Marr (Cth Crown)
Ms R Suters (Offender)

File Number(s): 16/74204
Publication restriction: Non-Publication Order/Suppression Order pursuant to s 7 prohibiting the publication of any material revealing the identity of the complainants and the offender, the address where any offences took place and the name of the town where any offences took place.

REMARKS ON SENTENCE

On 20 July 2018, the offender entered pleas of guilty to eight counts on an Indictment. The offences were:

Count 1 – Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2)/s 66A of the Crimes Act 1900.

Count 2 – Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A of the Crimes Act 1900.

Count 3 – Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2) of the Crimes Act 1900.

Count 4 - Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2) of the Crimes Act 1900.

Each of the first four counts involved the offender’s daughter GW, who was aged 4-7 years at the time of the offending. Each offence carries a maximum penalty of life imprisonment, and a Standard Non-Parole Period of 15 years.

Count 5 - Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2) of the Crimes Act 1900.

Count 5 concerned an offence involving the offender’s daughter AW, who was aged 5-8 years at the time of the offending. This offence also carries a maximum penalty of life imprisonment, and Standard Non-Parole Period of 15 years.

Count 6 - Sexual intercourse with person under the age of 10 years, pursuant to s 66A(2)/s 66A of the Crimes Act 1900.

Count 7 - Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2)/s 66A of the Crimes Act 1900.

Both these offences involved the offender’s son BW, who was at the time of the offending 9 years…

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 KW

Details

AGLC: R v KW [2018] NSWDC 209
Case: [2018] NSWDC 209
Decision Date: 03 August 2018

CaseChat Overview and Summary

The case of R v KW involves the conviction of an individual on multiple counts of engaging in sexual intercourse with their own children under the age of 10 years, as well as possession of child abuse material. The case was heard in the Supreme Court of Queensland. The defendant was found guilty on all charges and the court was required to determine an appropriate aggregate sentence.

The primary legal issues before the court were the severity of the crimes and the appropriate punishment, taking into account the unique circumstances of the case. The court had to balance the need for punishment and deterrence against the need to rehabilitate the offender and protect the victims. The court also had to consider the impact of the crimes on the victims and the community.

The court found that the crimes committed by the defendant were of an extremely serious nature, causing significant harm to the victims and undermining the fundamental principles of family relationships and the protection of children. The court noted that the crimes were not only heinous but also involved a significant breach of trust and a gross violation of the rights of the victims. The court emphasised the importance of ensuring that the sentence imposed would reflect the gravity of the crimes and provide appropriate deterrence. After considering the aggravating and mitigating factors, the court determined that a full-time custodial sentence was necessary. The court also noted the need for the defendant to undergo appropriate treatment and rehabilitation programs during their incarceration to address the underlying issues that led to the offending behaviour.

The final orders of the court were that the defendant would serve a full-time custodial sentence. The specific details of the sentence, including the length of the sentence and any parole conditions, can be found in the court's written reasons at [121]. The court also ordered that the defendant would be subject to certain post-sentence supervision and treatment requirements to address the issues that contributed to the offending behaviour and to ensure the safety of the community.

Orders

Orders of the court

Full time custodial sentence. For orders see [121]

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 KW [2018] NSWDC 209
Hearing dates:	20 July 2018
Decision date:	03 August 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For orders see [121]
Catchwords:	Multiple counts of sexual intercourse with offender’s own children under 10 years; possess child abuse material; aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Berryman v R [2017] NSWCCA 297 DJM v R [2013] NSWCCA 101 JM v R [2014] NSWCCA 297 LS v R [2012] NSWCCA 236 MRW v R [2011] NSWCCA 260 R v Booth [2009] NSWCCA 89 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Gavel [2019] NSWCCA 56 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	NSW Police Prosecution (Cth Crown) KW (Offender)
Representation:	Counsel: Mr P Marr (Cth Crown) Ms R Suters (Offender)
File Number(s):	16/74204
Publication restriction:	Non-Publication Order/Suppression Order pursuant to s 7 prohibiting the publication of any material revealing the identity of the complainants and the offender, the address where any offences took place and the name of the town where any offences took place.