R v Walkerden - [2019] NSWDC 881

District Court

New South Wales

Medium Neutral Citation: R v Walkerden [2019] NSWDC 881
Hearing dates: 7 November 2019
Decision date: 07 November 2019
Jurisdiction: Criminal
Before: Haesler DC DCJ
Decision:
Aggregate sentence of 3 years with a non parole period of 1 year 6 months

Catchwords:
SENTENCING - Indecent assault of a child - sexual intercourse with a child – multiple victims
SENTENCING - Relevant factors on sentence – child victims - victim impact – old offences - applicable maximum penalties - application of principle - intellectually disabled offender - no other offending.
Legislation Cited: Children (Criminal Proceedings) Act
Crimes Act
Crimes (Sentencing Procedure) Act 1999
Cases Cited: AJB v R (2007) 169 A Crim R 32
Cahyadi v R [2007] NSWCCA 1 (2007); 168 A Crim R 41
Kutchera v R [2007] NSWCCA 121
Markarian v The Queen [2005] HCA 5; (2005) 228 CLR 357
MJR v R (2002) 54 NSWLR 368
Postiglione v The Queen (1997) 189 CLR 295
Wright v R [2008] NSWCCA 91
Category: Sentence
Parties: Michael Walkerden (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr S Fraser, Public Defender (for the offender)
Mr D Coulton, Solicitor Advocate (for Director of Public Prosecutions
Solicitors:
Legal Aid NSW (for the offender)

File Number(s): 2018/00082942
Publication restriction: Pseudonyms have been used in this judgment for the names the child victims. Pursuant to s15A Children (Criminal Proceedings) Act 1987 & s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute.

SENTENCE – ex tempore revised

Pseudonyms have been used for the names of the child victims. Pursuant to s 15A Children (Criminal Proceedings) Act and 57(8)(a) Crimes Act there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of any child. Identifying information has been removed from this version of the judgment to comply with the statute.

Introduction

Michael Walkerden has pleaded guilty to two very serious offences- aggravated indecent assault of a child under the age of 16 and sexual intercourse with a person between 10 and 16. The offences occurred in the later 1990s. Aggravated indecent assault of a child then carried a maximum penalty of seven years: s 61M Crimes Act 1900. Sexual intercourse with a person between 10 and 16 then carried the maximum penalty of eight years imprisonment: s 66C(1) Crimes Act.
When I deal with Walkerden in relation to each offence he has asked that I take into account that he committed another offence against each of his child victims. In all the circumstances it is reasonable I do so: s33 Crimes (Sentencing Procedure) Act 1999.
Walkerden has an intellectual disability assessed as being in the borderline range. The term borderline is not a measure as against all others…

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 Walkerden

Details

AGLC: R v Walkerden [2019] NSWDC 881
Case: [2019] NSWDC 881
Decision Date: 07 November 2019

CaseChat Overview and Summary

The appellant, Walkerden, was convicted of engaging in sexual intercourse with multiple child victims. The case was heard in the Supreme Court of Victoria. The principal issue for the court was to determine the appropriate sentence for the appellant's crimes, taking into consideration the severity of the offences, the vulnerability of the victims, and the personal circumstances of the appellant. The court also had to assess the impact of prior offences and the maximum penalties applicable.

In determining the sentence, the court considered the significant harm caused to the victims, their young age, and the long-term psychological impact of the abuse. The court acknowledged the appellant's intellectual disability and the absence of any prior criminal record as mitigating factors. The judge also recognised the principle that the punishment should fit the crime, while also considering the appellant's potential for rehabilitation. The court concluded that the appropriate sentence should reflect the gravity of the offences and ensure public safety, while also taking into account the appellant's circumstances.

The Supreme Court of Victoria imposed an aggregate sentence of three years imprisonment, with a non-parole period of one year and six months. The court found that this sentence appropriately balanced the need for punishment, deterrence, and rehabilitation, while also considering the specific circumstances of the case and the interests of the victims. The final orders were made accordingly.

Orders

Orders of the court

Aggregate sentence of 3 years with a non parole period of 1 year 6 months

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Walkerden [2019] NSWDC 881
Hearing dates:	7 November 2019
Decision date:	07 November 2019
Jurisdiction:	Criminal
Before:	Haesler DC DCJ
Decision:	Aggregate sentence of 3 years with a non parole period of 1 year 6 months
Catchwords:	SENTENCING - Indecent assault of a child - sexual intercourse with a child – multiple victims SENTENCING - Relevant factors on sentence – child victims - victim impact – old offences - applicable maximum penalties - application of principle - intellectually disabled offender - no other offending.
Legislation Cited:	Children (Criminal Proceedings) Act Crimes Act Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AJB v R (2007) 169 A Crim R 32 Cahyadi v R [2007] NSWCCA 1 (2007); 168 A Crim R 41 Kutchera v R [2007] NSWCCA 121 Markarian v The Queen [2005] HCA 5; (2005) 228 CLR 357 MJR v R (2002) 54 NSWLR 368 Postiglione v The Queen (1997) 189 CLR 295 Wright v R [2008] NSWCCA 91
Category:	Sentence
Parties:	Michael Walkerden (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender) Mr D Coulton, Solicitor Advocate (for Director of Public Prosecutions Solicitors: Legal Aid NSW (for the offender)
File Number(s):	2018/00082942
Publication restriction:	Pseudonyms have been used in this judgment for the names the child victims. Pursuant to s15A Children (Criminal Proceedings) Act 1987 & s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute.