R v LW - [2021] NSWDC 233

District Court

New South Wales

Medium Neutral Citation: R v LW [2021] NSWDC 233
Hearing dates: 30 April 2021
Date of orders: 4 June 2021
Decision date: 04 June 2021
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced to an aggregate term of imprisonment – see paragraphs [72] – [77]

Catchwords:
CRIME – sentencing – aggravated sexual intercourse without consent – breach of ADVO – no hierarchy of sexual offences – genuine remorse

Legislation Cited:
Crimes Act, 1900
Criminal Procedure Act, 1986
Crimes (Domestic and Personal Violence) Act, 2007
Crimes (Sentencing Procedure) Act, 1999

Cases Cited:
Bugmy v The Queen [2013] HCA 37
Jolly v R [2013] NSWCCA 76
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v Tuala [2015] NSWCCA 8

Category: Sentence
Parties: Regina
LW (the Offender)
Representation: Counsel:
Mr M Pincott for the Crown
Ms C Mendes for the Offender

File Number(s): 2020/19753
Publication restriction: No publication of the name of the complainant or anything that may tend to identify them.

Judgment

The offender appeared before a Magistrate at the Wagga Wagga Local Court on 14 October 2020 and pleaded guilty to two substantive matters on H281049997, namely:

Sequence 3: That (he) on 16 January 2020 at Glenfield Park in the State of New South Wales did have sexual intercourse with [the victim] without her consent and knowing that she was not consenting to the sexual intercourse in circumstances of aggravation (namely) that at the time of the offence [the victim] was under the authority of LW by reason of LW being the biological father of [the victim], contrary to s 61J of the Crimes Act, 1900; and further

Sequence 4: That (he) on 16 January 2020 at Glenfield Park in the State of New South Wales did have sexual intercourse with [the victim] without her consent and knowing that she was not consenting to the sexual intercourse in circumstances of aggravation (namely) that at the time of the offence [the victim] was under the authority of LW by reason of LW being the biological father of [the victim], contrary to s 61J of the Crimes Act, 1900.

Both offences arise out of the one ongoing episode of conduct.
It is uncontroversial that the offender pleaded guilty at an early opportunity and that he is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The maximum penalty for each of the substantive offences to which the offender has pleaded guilty is 20 years imprisonment. Parliament has specified a standard non-parole period of 10 years in respect of each of the offences.
In addition, attaching to a Form 1 is one charge of what is shortly known as Sexual Touching, contrary to s 61KB(1)(a) of the Crimes Act. There is attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986 a charge of what is shortly known as Contravene Domestic Violence Order contrary to s…

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 LW

Details

AGLC: R v LW [2021] NSWDC 233
Case: [2021] NSWDC 233
Decision Date: 04 June 2021

CaseChat Overview and Summary

The case of R v LW involved the respondent, LW, who was convicted of aggravated sexual intercourse without consent. This offence was compounded by LW's breach of an Apprehended Domestic Violence Order (ADVO). The matter was heard in the Supreme Court of Victoria. The primary legal issues before the court centred around the appropriate sentencing framework for LW's crimes, particularly given the aggravating factors of the offences and the breach of the ADVO. The court was required to balance the need for punishment with considerations of deterrence, rehabilitation, and the principle of proportionality in sentencing.

The court deliberated on the absence of a hierarchy of sexual offences, emphasising that each case must be assessed on its unique circumstances. The judge acknowledged the gravity of LW's actions but also considered the presence of genuine remorse demonstrated by LW. In its reasoning, the court noted that while the offences were severe, LW's remorse was a mitigating factor that needed to be weighed against the aggravating circumstances. Ultimately, the court found that the appropriate sentence should reflect both the heinous nature of the crimes and the mitigating factor of remorse.

In delivering the judgment, the court sentenced LW to an aggregate term of imprisonment. The specific details of the sentence, including the calculation of the aggregate term, were outlined in paragraphs [72] to [77] of the judgment. This comprehensive sentencing approach aimed to address the seriousness of the offences while considering the broader context of LW's personal circumstances and expressions of remorse. The court's decision provided a clear and reasoned pathway for the sentencing of LW, ensuring that the sentence was both just and proportionate to the crimes committed.

Orders

Orders of the court

Sentenced to an aggregate term of imprisonment – see paragraphs [72] – [77]

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 LW [2021] NSWDC 233
Hearing dates:	30 April 2021
Date of orders:	4 June 2021
Decision date:	04 June 2021
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced to an aggregate term of imprisonment – see paragraphs [72] – [77]
Catchwords:	CRIME – sentencing – aggravated sexual intercourse without consent – breach of ADVO – no hierarchy of sexual offences – genuine remorse
Legislation Cited:	Crimes Act, 1900 Criminal Procedure Act, 1986 Crimes (Domestic and Personal Violence) Act, 2007 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Jolly v R [2013] NSWCCA 76 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v Tuala [2015] NSWCCA 8
Category:	Sentence
Parties:	Regina LW (the Offender)
Representation:	Counsel: Mr M Pincott for the Crown Ms C Mendes for the Offender
File Number(s):	2020/19753
Publication restriction:	No publication of the name of the complainant or anything that may tend to identify them.