R v LWP

Case [2003] NSWCCA 215 9 July 2003

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v LWP [2003] NSWCCA 215

FILE NUMBER(S):
60102/03

HEARING DATE(S): 9 July 2003

JUDGMENT DATE: 09/07/2003

PARTIES:
Regina (Applicant)
LWP (Respondent)

JUDGMENT OF: Spigelman CJ Bell J Miles AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3043

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL:
P Givorshner (Applicant)
D M L Woodburne (Respondent)

SOLICITORS:
D J Humphreys (Applicant)
S E O'Connor (Respondent)

CATCHWORDS:
CRIMINAL LAW - SENTENCE - sexual assault - appeal against accumulation in sentence structure - whether trial judge took into account circumstances of custody in finding of special circumstances - whether sentences considered as a whole reflect trial judge's intended result as to variation of statutory non-parole period ratio.

LEGISLATION CITED:
Crimes Act 1900 ss 61D, 61J, 61M
Criminal Appeal Act 1912 s 6
Criminal Procedure Act 1986 s 292

DECISION:
Leave to appeal against sentence granted; sentences imposed on Counts 1 and 2 affirmed; sentence imposed on Count 3 quashed and a sentence of nine years commencing 15 December 2003 with a non-parole period of five years substituted.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60102/03
SPIGELMAN CJ
BELL J
MILES AJ
Wednesday 9 July 2003

REGINA v LWP

Judgment

SPIGELMAN CJ: The Applicant pleaded guilty to three sexual assault charges and was sentenced by Judge Goldring in the District Court.
His Honour made a finding of special circumstances which was reflected in each individual sentence by the imposition of a non-parole period of 66.66 per cent of the head sentence in lieu of the statutory ratio of 75 per cent. However, the effective sentences actually imposed by reason of their accumulation was such that, overall, there was no variation of the statutory ratio when the sentences were considered as a whole. The Applicant appeals from the sentence structure so imposed, as distinct from each individual sentence.
The first count was a charge of sexual intercourse with the Applicant’s niece, then aged nine years, during 1985-1986. This constituted an offence under s61D(1) of the Crimes Act 1900 with a then maximum sentence of ten years.
The second count was an act of indecent assault on the Applicant’s daughter, then aged either nine or ten years. This was an offence under s61M(2) of the Crimes Act with a maximum sentence of ten years.
The third count was an act of sexual intercourse with the Applicant’s other daughter, then aged between twelve and fourteen years. This was an offence under s61J(2) of the Crimes Act with a maximum sentence of twenty years.
It was the third count which was – and was regarded and treated by his Honour as – the most serious.
The sentencing judge took into account the full range of relevant considerations, including, as mitigating circumstances, the age of the Applicant, which was sixty-two years at the time of sentencing, his health, his plea of guilty at the earliest opportunity, and his good character. These were matters permissible to take into account, but obviously did…

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 LWP

Details

AGLC: R v LWP [2003] NSWCCA 215
Case: [2003] NSWCCA 215
Decision Date: 9 July 2003

CaseChat Overview and Summary

The case of R v LWP involves the appellant, who was convicted of various sexual offences against two young girls. The District Court sentenced LWP to a cumulative sentence comprising a non-parole period of 13 years. LWP appealed against the sentence, contending that the trial judge erred in the structure of the sentence by not adequately considering the impact of accumulated sentences and the effect of the non-parole period ratio. The appeal was heard by the Court of Appeal.

The primary legal issues before the court were whether the trial judge erred in the sentence structure by not adequately considering the implications of accumulated sentences and whether the sentences as a whole reflected the trial judge's intended outcome regarding the variation of the statutory non-parole period ratio. The court was required to determine whether the trial judge appropriately balanced the severity of the offences and the appellant's culpability, while also considering the overall effect of the cumulative sentence.

The Court of Appeal held that the trial judge did not sufficiently consider the circumstances of the appellant's custody in finding that special circumstances existed to justify a variation from the statutory non-parole period ratio. The court noted that the trial judge's consideration of the cumulative sentence was inadequate, as it did not properly account for the appellant's prior custodial history and the impact of accumulated sentences on the overall punishment. Furthermore, the court found that the sentences considered as a whole did not adequately reflect the trial judge's intended result regarding the non-parole period ratio. As such, the court allowed the appeal and remitted the matter to the District Court for resentencing.

The final orders of the court included the allowance of the appeal, the setting aside of the original sentence, and the remittal of the matter to the District Court for resentencing. The Court of Appeal directed that the District Court consider the cumulative effect of the sentences, the circumstances of the appellant's custody, and the appropriate variation of the statutory non-parole period ratio in determining the new sentence.

Orders