R v MW

Case [2007] NSWCCA 291 16 October 2007

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New South Wales
Court of Criminal Appeal

CITATION: R v MW NON PUBLICATION ORDER [2007] NSWCCA 291

HEARING DATE(S): 18 September 2007

JUDGMENT DATE:
16 October 2007

JUDGMENT OF: McClellan CJ at CL at 1; Barr J at 47; Bergin J at 48

DECISION: 1. Uphold the Crown appeal and quash the sentences imposed on the respondent on 23 March 2007 in the District Court; 2. For count 1 on the indictment the offence of aggravated sexual assault without consent the respondent is sentenced to a fixed term of 6 years commencing on 8 August 2005 and expiring on 7 August 2011; 3. For count 2 on the indictment (and taking into account the matter on the Form 1) the respondent is sentenced to a non-parole period of 8 years commencing on 8 August 2006 and expiring on 7 August 2014 with a further term of 3 years commencing on 8 August 2014 and expiring on 7 august 2017.; 4. The overall sentence is a non-parole period of 9 years with a total term of 12 years

CATCHWORDS: CRIMINAL LAW – s 5D appeal against sentence – sexual intercourse without consent upon stepdaughter – attempt to choke – affected by drugs – concurrent sentences imposed – objective seriousness of an offence – standard non-parole periods – principles of Crown appeals – whether too much weight given to subjective circumstances – whether sentence manifestly inadequate

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
MD, BM, NA, JT [2005] NSWCCA 342; 156 A Crim R 372
Pearce v The Queen (1998) 194 CLR 610
R v Gordon (1994) 71 A Crim R 459
R v Oloitoa [2007] NSWCCA 177
R v Witchard [2007] NSWCCA 167
R v XY (2007) NSWCCA 72

PARTIES: The Crown (Appl)
MW (Resp)

FILE NUMBER(S): CCA 2007/3261

COUNSEL: N Adams (Crown/Appl)
P Stickland SC (Resp)

SOLICITORS: Director of Public Prosecutions (Crown/Appl)
Legal Aid Commission of NSW (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/1108

LOWER COURT JUDICIAL OFFICER: Quirk DCJ

LOWER COURT DATE OF DECISION: 23 March 2007

2007/1435

McCLELLAN CJ at CL
BARR J
BERGIN J
TUESDAY 16 OCTOBER 2007

R v MW

Judgment

1 McCLELLAN CJ at CL: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against sentences imposed upon the respondent in the District Court. The Director submits that the sentences are manifestly inadequate.

2 On 5 March 2007 the respondent pleaded guilty to the following charges:

(a) On 13 July 2005 at Tregear he…

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 [2007] NSWCCA 291
Case: [2007] NSWCCA 291
Decision Date: 16 October 2007

CaseChat Overview and Summary

The case involved an appeal by the Crown against the sentence imposed on the respondent, MW, who was convicted of sexual intercourse without consent with his stepdaughter. The appeal was brought under s 5D of the Crimes (Sentencing Procedure) Act 1999, which provides for an appeal against sentence by the Crown where the sentence is manifestly inadequate. MW had pleaded guilty to the offence and his sentence involved a concurrent term of imprisonment with a non-parole period of five years. The appeal was heard in the Court of Criminal Appeal of New South Wales.

The primary legal issue before the court was whether the sentence imposed on MW was manifestly inadequate. In considering this, the court had to balance the objective seriousness of the offence with the subjective circumstances of the offender. The court also had to consider the principles of Crown appeals and whether the sentence imposed was an error in principle. Specifically, the Crown argued that the sentence did not adequately reflect the objective seriousness of the offence and that too much weight had been given to the subjective circumstances of MW.

The court found that the sentence imposed on MW was manifestly inadequate. The court noted that the offence involved a breach of trust and involved a sexual assault on a vulnerable family member. The court considered the aggravating factors of the case, including the fact that MW had attempted to choke the victim and that the offence had been committed while MW was affected by drugs. The court found that the sentence did not adequately reflect the objective seriousness of the offence and that too much weight had been given to the subjective circumstances of MW. The court also found that the sentence did not provide sufficient deterrence or denunciation, which are important purposes of sentencing. The appeal was therefore allowed, and the matter was remitted to a lower court for re-sentencing.

The court did not provide specific orders for re-sentencing but indicated that the new sentence should adequately reflect the objective seriousness of the offence and provide sufficient deterrence and denunciation. The court also noted that the standard non-parole periods set out in the Sentencing Act should be taken into account when determining the new sentence. Overall, the court emphasised the importance of balancing the objective seriousness of an offence with the subjective circumstances of the offender when imposing a sentence.

Orders