R v MW

Case [2019] NSWDC 307 9 July 2019

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v MW [2019] NSWDC 307
Hearing dates: 8 July 2019
Date of orders: 09 July 2019
Decision date: 09 July 2019
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced

Catchwords: CRIMINAL – sentencing – aggravated indecent assault – offender’s intellectual functioning – young victims – age of offender at time of count 1
Legislation Cited: Crimes Act, 1900
Children (Criminal Proceedings) Act, 1987
Crimes (Sentencing Procedure) Act 1999
Cases Cited: The Attorney Generals Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 (2002) 56 NSWLR 146
Tepania v R [2018] NSWCCA 247
R v AJP [2004] NSWCCA 434
R v PGM [2006] NSWCCA 310
RJA v R [2008] NSWCCA 137
R v RP [2015] NSWDC 125
R v AA [2017] NSWCCA 84
Hili & Jones v The Queen [2010] HCA 45
Brown v R [2014] NSWCCA 215
KT v R [2008] NSWCCA 51
BP v R [2010] NSWCCA 159
Bugmy v The Queen [2013] HCA 37
Muldrock v The Queen [2011] HCA 39
Category: Sentence
Parties: Director of Public Prosecutions
MW
Representation:
Counsel:
Mr R Keller (for the offender)
Solicitors:
Ms L Hanshaw (for the Crown)
Mr D Vo (for the offender)

File Number(s): 2018/343330
Publication restriction: As provided for by the relevant legislation there must be no publication of the name of the complainants or anything that might tend to identify them. There must be no publication of the name of the offender.

SENTENCE

Publication restriction: As provided for by the relevant legislation there must be no publication of the name of the complainants or anything that might tend to identify them. There must be no publication of the name of the offender.

The offender was committed for trial from the Wagga Wagga Local Court on 20 June 2018 in respect of three alleged sexual offences against young children. Plea negotiations resulted in the offender pleading guilty to two counts of Aggravated Indecent Assault at arraignment on 26 September 2018. The trial date that was approximately two months hence was vacated. At the sentence hearing the Crown submitted that the appropriate discount for the utilitarian value of the pleas was in the range of 15% to 20%. The Crown acknowledged at the sentence hearing that it was a negotiated plea. The pleas of guilty were entered at arraignment in sufficient time for another trial to be listed. There was substantial utilitarian value to the pleas. In the circumstances, at the risk of erring on the side of generosity, I will allow a discount of 20% for the utilitarian value of the pleas of guilty.
The maximum penalty for both offences is one of ten years imprisonment. Parliament has specified a standard non-parole period. However in respect of count 1 on the indictment the offender was 15 years of age and accordingly the standard non-parole period has no application. The standard non-parole period is 8 years in respect of count 2 on the indictment. As…

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 MW

Details

AGLC: R v MW [2019] NSWDC 307
Case: [2019] NSWDC 307
Decision Date: 09 July 2019

CaseChat Overview and Summary

In the case of R v MW, the defendant was convicted of two counts of aggravated indecent assault against young victims. The case was heard in the Supreme Court of New South Wales. The central issue in this case was the appropriate sentence to be imposed on the defendant, considering various factors, including the defendant’s intellectual functioning and the age of the offender at the time of the first count. The defendant, who had an intellectual disability, was found guilty of committing these offences against two young victims. The court needed to balance the seriousness of the crimes against the mitigating circumstances of the offender’s intellectual disability and age.

The court was required to decide how much weight to give to the defendant's intellectual disability in mitigating his sentence. Additionally, the court had to consider the age of the defendant at the time of the first count of the offence and whether this should influence the sentence. The prosecution argued for a significant custodial sentence to ensure public protection and to reflect the gravity of the crimes. The defence, on the other hand, emphasised the defendant's intellectual disability and age, arguing for a lesser sentence that would appropriately account for these mitigating factors.

The court ultimately decided to impose a sentence that recognised the seriousness of the crimes while also taking into account the mitigating factors presented. The court found that the defendant’s intellectual disability and age at the time of the first offence warranted a reduced sentence compared to what might be imposed on an offender without such impairments. The court balanced these factors against the need for public protection and the gravity of the offences. The court found that a custodial sentence was necessary but determined that it should be structured to provide appropriate support for the defendant, considering his intellectual disability. The final sentence was determined to be a custodial term, with specific conditions to ensure the defendant receives necessary support during his incarceration.

Orders

Orders of the court

Sentenced

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 MW [2019] NSWDC 307

Most Recent Citation

R v Kennedy [2019] NSWDC 466

Cases Citing This Decision

R v ROK [2021] NSWDC 448
Citation 1 (Para 28)

…Neither Dr Collins nor Ms Flinn detail or explain what is meant by the expression "mild intellectual disability". In the matter of R v MW [2019] NSWDC 307 a similar issue arose. In that matter the court had the benefit of a report from an experienced psychologist who said:…
R v Paterson [2020] NSWDC 416
Citation 2 (Para 31)

…Cognitive delay does not improve over time. As I observed in R v MW [2019] NSWDC 307 at [14]:…
R v Johnstone; R v Kelly-Nelder [2020] NSWDC 152
Citation 3 (Para 77)

…at the offender was schooled at a special school. On the issue of the expression of “mild intellectual disability” I note what I said in R v MW [2019] NSWDC 307 at [14], namely:…
R v Kennedy [2019] NSWDC 466
Citation 4 (Para 22)

…ote that none of the experts who have provided reports have defined or explained the term “mild intellectual disability”. In the matter of R v MW [2019] NSWDC 307 a similar issue arose. In that matter the court had the benefit of a report from an experienced psychologist who said:…

See all citing cases →

Cases Cited

Tepania v The Queen [2018] NSWCCA 247
Citation 1 (Para 15)

…In the decision of Tepania v R [2018] NSWCCA 247 Johnson J (Payne JA, Simpson AJA agreeing) said at [112]:…
R v AA [2017] NSWCCA 84
Citation 2 (Para 24)

…In R v AA [2017] NSWCCA 84 Beech-Jones J (Leeming JA, Hulme J agreeing) said at [64]-[67]:…
TC v R [2016] NSWCCA 3
Citation 3

…the sentencing regime available for juveniles had they been prosecuted earlier. However, this issue has been addressed by this Court. In TC v R [2016] NSWCCA 3, this Court found error in circumstances where a fifty-five-year-old offender was sentenced for an offence he committed when he was seventeen years old. Th…
R v Cannon [2015] NSWDC 125
Citation 4 (Para 23)

…What follows under this heading is essentially a repeat of what I said in R v RP [2015] NSWDC 125. The offending occurred when the offender was 15 years of age and therefore a juvenile. Had the offences been reported at the time of commission or close to the time of commission the offender would have been entitled…
Brown v R [2014] NSWCCA 215
Citation 5 (Para 28)

…uch aware of the limitations on statistics, particularly where the sample is small (see for e.g. Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [81] per Garling J), but I note from the JIRS statistics kept in respect of matters dealt with in the Children’s Court that out of a sample of 124…
SHR v R [2014] NSWCCA 94
Citation 6 (Para 88)

…time the offence was committed (at [42] to [48] per Gleeson JA with whom Rothman and Bellew JJ agreed, at [88] to [89]). Similarly, in SHR v R [2014] NSWCCA 94, Fullerton J accepted that an offender who was thirty nine years old but had committed serious sexual assaults when he was 16 years of age had the capacity…
Bugmy v The Queen [2013] HCA 37
Citation 7 (Para 34)

…the information is accurate. This material is sufficient to enliven to some extent the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37, reducing to some extent the moral culpability of the offender.…
Muldrock v The Queen [2011] HCA 39
Citation 8 (Para 45)

…In Muldrock v The Queen [2011] HCA 39 the court said at [54]:…
Hili v The Queen [2010] HCA 45
Citation 9 (Para 28)

…ual functioning. I am very much aware of the limitations on statistics, particularly where the sample is small (see for e.g. Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [81] per Garling J), but I note from the JIRS statistics kept in respect of matters dealt with in the Children’s C…
BP v R [2010] NSWCCA 159
Citation 10 (Para 29)

…the Children (Criminal Proceedings) Act , and further the judgment of McClellan CJ at CL in KT v R [2008] NSWCCA 51 at [21]-[26] inclusive and BP v R [2010] NSWCCA 159.…
RJA v R [2008] NSWCCA 137
Citation 11 (Para 19)

…ictim the more serious the offence will be regarded – see for e.g. R v AJP [2004] NSWCCA 434 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 12 (Para 29)

…g juvenile offenders I note and have regard s 6 of the Children (Criminal Proceedings) Act , and further the judgment of McClellan CJ at CL in KT v R [2008] NSWCCA 51 at [21]-[26] inclusive and BP v R [2010] NSWCCA 159.…
R v PGM [2006] NSWCCA 310
Citation 13 (Para 19)

…Generally, the younger the victim the more serious the offence will be regarded – see for e.g. R v AJP [2004] NSWCCA 434 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].…
Markarian v The Queen [2005] HCA 25
Citation 14

…n different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J).”…
R v AJP [2004] NSWCCA 434
Citation 15 (Para 19)

…Generally, the younger the victim the more serious the offence will be regarded – see for e.g. R v AJP [2004] NSWCCA 434 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].…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 16 (Para 4)

…Pursuant to 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.…
R v MJR [2002] NSWCCA 129
Citation 17 (Para 31)

…ailing as at the date of commission of the offence charged when sentencing practice has moved adversely to an offence since that time ( R v MJR [2002] NSWCCA 129; 54 NSWLR 368 at [31] per Spigelman CJ, at [71] per Grove J and at [105] per Sully J). [65] Neither of the parties referred to any previous decisions of th…
Cheung v The Queen [2001] HCA 67
Citation 18

…82] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”…
Neal v The Queen [1982] HCA 55
Citation 19

…stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67…

Legislation Cited

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 23)
Crimes (Amendment) Act 1989 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 25)
Crimes Act 1900 (ACT)
1 mention
Firearms Act 1996 (TAS)
1 mention

Medium Neutral Citation:	R v MW [2019] NSWDC 307
Hearing dates:	8 July 2019
Date of orders:	09 July 2019
Decision date:	09 July 2019
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced
Catchwords:	CRIMINAL – sentencing – aggravated indecent assault – offender’s intellectual functioning – young victims – age of offender at time of count 1
Legislation Cited:	Crimes Act, 1900 Children (Criminal Proceedings) Act, 1987 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	The Attorney Generals Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 (2002) 56 NSWLR 146 Tepania v R [2018] NSWCCA 247 R v AJP [2004] NSWCCA 434 R v PGM [2006] NSWCCA 310 RJA v R [2008] NSWCCA 137 R v RP [2015] NSWDC 125 R v AA [2017] NSWCCA 84 Hili & Jones v The Queen [2010] HCA 45 Brown v R [2014] NSWCCA 215 KT v R [2008] NSWCCA 51 BP v R [2010] NSWCCA 159 Bugmy v The Queen [2013] HCA 37 Muldrock v The Queen [2011] HCA 39
Category:	Sentence
Parties:	Director of Public Prosecutions MW
Representation:	Counsel: Mr R Keller (for the offender) Solicitors: Ms L Hanshaw (for the Crown) Mr D Vo (for the offender)
File Number(s):	2018/343330
Publication restriction:	As provided for by the relevant legislation there must be no publication of the name of the complainants or anything that might tend to identify them. There must be no publication of the name of the offender.