R v Wade - [2013] NSWSC 1092

Supreme Court

New South Wales

Medium Neutral Citation: R v Wade [2013] NSWSC 1092
Hearing dates: 7 June 2013
Decision date: 05 August 2013
Before: Latham J
Decision:
The applicant's sentence ought be re-determined. I specify a term of imprisonment of 36 years to date from 13 August 1988, expiring 12 August 2024. I specify a non- parole period of 26 years, expiring 12 August 2014.
Earliest date entitled to be considered for release 13 August 2014.

Catchwords: SENTENCE - application for redetermination of life sentence - murder and sexual assault of child - top of the range of murder - low to medium risk of re-offending - sentence re-determined
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Sentencing Act 1989
Cases Cited: R v Rees NSWCCA 22 September 1995 (unreported)
Category: Sentence
Parties: Regina - (Crown)
Douglas James Wade - (Applicant)
Representation: Counsel
MM Cinque - (Crown)
J Stratton SC - (Applicant)
Solicitors
Solicitor for the Director of Public Prosecutions - (Crown)
Legal Aid NSW - (Applicant)

File Number(s): 1998/93

Judgment

NON-PUBLICATION ORDER PLACED ON NAME OF VICTIM AND ANY other NAME OR INFORMATION CAPABLE OF IDENTIFYING HER

The applicant, Douglas James Wade, was convicted after trial of the murder of 22 month old JC on 13 August 1988. Justice Finlay imposed a life sentence on 20 September 1989. The applicant was also sentenced to 10 years imprisonment for the sexual assault of the child. This latter sentence has expired.

The applicant is eligible to make an application for the redetermination of his sentence, pursuant to s 44 and Schedule 1 of the Crimes (Sentencing Procedure) Act 1999. The applicant originally filed an application for determination of his life sentence under s 13 A of the Sentencing Act 1989 on 16 August 1996. The application was listed for hearing on 16 February 2001 but was withdrawn 10 days prior to the hearing.

The Offences

The circumstances surrounding the commission of the offences are as follows.

The applicant was born in Tumut and left school at the age of 16. He had various jobs after leaving school mainly of an agricultural nature. He is a single man with no children, never having married.

In 1988 the applicant was working as a shearer in the Tumut area. He formed a relationship with MC the mother of the victim. MC worked as a casual bar steward at a local club. The applicant stayed overnight at MC's premises in Tumut from time to time and babysat MC's children. The victim and her older brother were both under five years of age.

In May 1988, bruises were observed on the victim's stomach, over the outer aspect of both thighs and over her vulva. In June 1988 bruises were seen on both sides of the victim's face, characteristic of slap marks left by an adult hand. There were also multiple bruises around the lateral thighs and both buttocks.

On 13 August 1988 shortly before 7:30 pm, MC went out with friends leaving the…

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 Wade

Details

AGLC: R v Wade [2013] NSWSC 1092
Case: [2013] NSWSC 1092
Decision Date: 05 August 2013

CaseChat Overview and Summary

In the case of R v Wade, the applicant sought a redetermination of his life sentence imposed for the murder and sexual assault of a child. The applicant, Wade, had been found guilty of these serious offences and was originally sentenced to life imprisonment. Wade applied to the court for a redetermination of his sentence, arguing that the initial sentence was too severe and that his risk of re-offending was low to medium. The court was tasked with assessing whether the original sentence was appropriate in light of these arguments.

The primary legal issue before the court was whether Wade's original life sentence was excessive and whether his risk of re-offending warranted a reduction in his sentence. The court considered the severity of the crimes committed, the principles of sentencing for murder, and the risk assessment of the applicant. It was necessary for the court to balance the gravity of the offences with the applicant's potential for rehabilitation and future dangerousness.

After considering the arguments presented, the court found that while the crimes were of the utmost gravity, warranting a significant custodial sentence, the original life sentence was indeed at the top end of the range for such offences. The court also accepted that Wade presented a low to medium risk of re-offending. Consequently, the court redetermined Wade's sentence, reducing it to a term that reflected the appropriate balance between punishment and the likelihood of re-offending.

The court ordered that Wade's life sentence be redetermined to a fixed term of imprisonment, reflecting the reduced risk of re-offending while acknowledging the severity of his crimes. This decision provided a sentence that was proportionate to both the nature of the offences and the likelihood of Wade re-offending in the future.

Orders