R v TWP

Case [2006] NSWCCA 141 1 May 2006

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CITATION: R v TWP [2006] NSWCCA 141

HEARING DATE(S): 6 February 2006

JUDGMENT DATE:
1 May 2006

JUDGMENT OF: Beazley JA at 1; Simpson J at 2; Rothman J at 3

DECISION: a Appeal allowed; b The sentences imposed by his Honour Judge Black QC of the District Court on 2 September 2005 be quashed and in lieu thereof, the following sentences be imposed: (i) Count 14: common assault – a fixed term of 18 months’ imprisonment to commence on 2 September 2005 and expiring on 1 May 2007; (ii) Count 1: indecent assault – a fixed term of three years’ imprisonment commencing 2 January 2006 and expiring on 1 January 2009; (iii) Count 10: incest – a fixed term of three years’ imprisonment commencing 2 January 2007 and expiring on 1 January 2010; (iv) Count 12: aggravated indecent assault – imprisonment for three years commencing 2 January 2008 and expiring on 1 January 2011 with a non-parole period of 27 months’ imprisonment commencing on 2 January 2008 and expiring on 1 April 2010; (v) Count 15: aggravated indecent assault – imprisonment for three years to commence on 2 January 2009 and expire on 1 January 2012 with a non-parole period of 27 months’ imprisonment to commence on 2 January 2009 and expire on 1 April 2011; (vi) Count 2: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for four years commencing 2 January 2010 and expiring on 1 January 2014 with a non-parole period of three years’ imprisonment commencing 2 January 2010 and expiring 1 January 2013; (vii) Counts 3, 4, 5, 6, 7, 8 and 9: sexual intercourse with a child between 10 and 16 years under authority – for each, imprisonment for four years to commence on 2 February 2011 and expire on 1 February 2015 with a non-parole period of three years’ imprisonment commencing on 2 February 2011 and expiring on 1 February 2014; (viii) Count 11: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for four years to commence on 2 February 2013 and expire on 1 February 2017 with a non-parole period of three years’ imprisonment commencing on 2 February 2013 and expiring on 1 February 2016; (ix) Count 13: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for four years to commence on 2 February 2014 and expire on 1 February 2018 with a non-parole period of three years’ imprisonment to commence on 2 February 2014 and expire on 1 February 2017; (x) Count 16: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for four years to commence on 2 February 2015 and expire on 1 February 2019 with a non-parole period of two years’ and seven months to commence on 2 February 2015 and expire on 1 September 2017; (xi) Count 17: sexual intercourse with a child between 10 and 16 years under authority – imprisonment for a…

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 TWP

Details

AGLC: R v TWP [2006] NSWCCA 141
Case: [2006] NSWCCA 141
Decision Date: 1 May 2006

CaseChat Overview and Summary

The case of R v TWP is a criminal appeal brought by the Crown against the sentencing of the respondent, TWP, who was convicted of sexual assault involving incest and sexual intercourse with a child. The matter was heard in the court of appeal. The Crown appealed the sentence imposed by the primary judge, arguing it was manifestly inadequate given the gravity of the offences and the harm caused to the victim.

The legal issues before the court involved determining whether the sentence was manifestly inadequate and whether the primary judge had sufficiently considered the principles applicable to Crown appeals, particularly the requirement for transparency in the sentencing process and the need to assign criminality for each offence. The Crown argued that the primary judge had failed to appropriately consider the overlap in the criminal conduct and had not adequately accounted for the harm and impact on the victim.

The court of appeal found that the sentence was manifestly inadequate. The primary judge did not provide sufficient reasons for the sentence imposed, failing to transparently identify the criminality associated with each offence and the overlap between them. The court held that the primary judge had not appropriately assigned criminality to the different aspects of the offending. The appeal was allowed, and the matter was remitted to the sentencing judge for re-sentencing with proper consideration of the legal principles and the harm caused to the victim.

The final orders of the court included the conviction being upheld but the sentence quashed. The matter was to be remitted to the sentencing judge to re-determine the appropriate sentence, ensuring transparency and proper consideration of the criminality and overlap in the offences committed.

Orders