R v PW - [2019] NSWDC 963

District Court

New South Wales

Case Name:	R v PW
Medium Neutral Citation:	[2019] NSWDC 963
Hearing Date(s):	Thursday 14 February 2019; Friday 31 May 2019; Wednesday 28 August 2019.
Date of Orders:	Wednesday 6 November 2019
Decision Date:	6 November 2019
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	Indictment 1: Aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 20 years, NPP of 14 years, parole thereafter of 6 years. Indictment 2: Aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 4 years. Indictment 3: Count 1 – Sentenced to a fixed term of 12 months Count 2 – Sentenced to a fixed term of 18 months To be served concurrently.
Catchwords:	CRIME — Child sex offences — Historical child sex offences — Production/Possession of child abuse material – Aggravated sexual intercourse with a child <10; >10 <14; >14 <16 — Indecent assault — Bestiality — 27 substantive offences — 4 Form 1 offences — Grooming of child — Persistent sexual abuse of a child — Two complainants — Offender in position of trust and authority — Offender was father and step-grandfather of victims — Offender had penile/anal intercourse with family dog and neighbour’s dog — Offender blindfolded victim and took photos — Bondage/restraints used — Guilty pleas after trial had commenced — Reasonable prospects of rehabilitation due to age and poor health.
Legislation Cited:	Crimes Act 1900 (NSW): ss 61E(1A), 61E(2), 61M(2), 66A, 66C(2), 76A, 79, 91H(2); Crimes (Sentencing Procedure) Act 1999 (NSW): ss 5, 10, 12, 25AA, 53A.
Cases Cited:	Clarkson v R [2011] VSCA 157. R v Gavel [2014] NSWCCA 56.
Category:	Sentence
Parties:	Regina (The Queen) PW (The Offender)
Representation:	For the Crown: Ms. C. Feiner of Counsel For the Offender: Mr. S. Hopper of Counsel
File Number(s):	2016/00183997
Publication Restriction:	Section 578A of the Crimes Act 1900 (NSW) applies: No publication of names of the complainants or anything which may identity the complainants.

Judgment

HER HONOUR: The offender, PW, is before the Court for sentence following his pleas of guilty to 31 separate substantive charges, including child sexual assault, possession and production of child pornography and bestiality, with a further four offences to be taken into account on three separate Form 1 documents. There are three indictments covering the substantive offences. They are all dated 19 March 2018. The offender had been committed for trial on these offences, and pleaded guilty to them on 19 March 2018, the first day of the trial. Thus, these pleas of guilty are late, and the discount to be applied to represent the utilitarian value, is low. I accept the Crown’s submission that 10% is an appropriate discount to apply in these circumstances.
Section 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to these sentences. It provides the following:
A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing,…

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 PW

Details

AGLC: R v PW [2019] NSWDC 963
Case: [2019] NSWDC 963
Decision Date: 6 November 2019

CaseChat Overview and Summary

The appellant was convicted of multiple child sex offences and appealed against his sentence. The case was heard in the Court of Criminal Appeal in New South Wales. The appellant was found guilty of a series of offences against two young girls, who were his step-granddaughter and granddaughter, and a neighbour’s dog. The offences included aggravated sexual intercourse, indecent assault, grooming, and possession of child abuse material. The appellant was also convicted of bestiality for engaging in sexual acts with a family dog and a neighbour’s dog.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive or inadequate. The appellant argued that the sentence was manifestly excessive, while the Crown submitted that the sentence was manifestly inadequate. The court considered the totality of the appellant’s offending, the seriousness of the offences, and the need for deterrence and denunciation. The court also considered the appellant’s personal circumstances, including his age and health.

The court held that the sentence was manifestly inadequate and ordered an aggregate sentence of 20 years, with a non-parole period of 14 years, to be followed by a parole period of 6 years. The court found that the appellant’s offending was of an extreme nature, and that the sentence imposed by the trial judge did not adequately reflect the seriousness of the offences. The court also noted that the appellant had shown no remorse for his actions and had continued to deny his guilt throughout the trial and appeal process.

The court ordered an aggregate sentence of 20 years, with a non-parole period of 14 years, to be followed by a parole period of 6 years. The court also ordered that the sentence be served concurrently with any other sentence the appellant may be serving.

Orders

Orders of the court

Indictment 1:

Aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 20 years, NPP of 14 years, parole thereafter of 6 years.

Indictment 2:

Aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 4 years.

Indictment 3:

Count 1 – Sentenced to a fixed term of 12 months

Count 2 – Sentenced to a fixed term of 18 months

To be served concurrently.

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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