R v Ware (a pseudonym) - [2024] NSWDC 424

District Court

New South Wales

Medium Neutral Citation: R v Ware (a pseudonym) [2024] NSWDC 424
Hearing dates: 19 July 2024
Date of orders: 19 July 2024
Decision date: 19 July 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 8 years with a non-parole period of 5 years

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child <10 — Indecent assault with child >10 — Circumstances of aggravation — Sexual intercourse with child >10 <14 — Circumstances of aggravation
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness — Form 1 offences — Delay
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Alcohol addiction — Mental illness and disorders — Ill health — Advancing age — Childhood sexual abuse by father — Exposed to alcohol abuse and domestic violence in childhood

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act1999 (NSW)
Sentence Procedure Act 1999 (NSW)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002; (2002) 56 NSWLR 146; [2013] NSWCCA 115
Carey v R [2024] NSWCCA 90
Kutchera v R [2007] NSWCCA 121
Magnuson v R [2013] NSWCCA 50
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
R v Cattell [2019] NSWCCA 297
RvTodd [1982] 2 NSWLR 517
R v Verdins [2007] VSCA 102
Wright v R [2008] NSWCCA 91

Texts Cited:
Australian Federal Government, Royal Commission, Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report (December 2017)

Category: Sentence
Parties: Aaron Ware (a pseudonym) (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
A Booker (for the offender)
Solicitors:
Legal Aid (NSW) (for the offender)
A Bird solicitor for Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2020/311097
Publication restriction: Pseudonyms have been used for the names of the offender and complainant.
Pursuant to s15A Children (Criminal Proceedings) Act 1987 (NSW), 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

JUDGMENT – ex tempore revised

Introduction

Pseudonyms will be used and there is to be no publication of the name that might identify either the complainant or the offender.
It needs to be stated and restated that anyone who offends in a sexual manner against a child commits a serious offence. Given the maximum penalties that apply or applied, it is expected that significant penalties will be imposed upon them. Those penalties and their maximums reflect the community understanding and expectation that any victim of a child sexual assault may suffer trauma and other injury, often longstanding.
Aaron Ware committed serious offences against a child who viewed him as…

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 Ware (a pseudonym)

Details

AGLC: R v Ware (a pseudonym) [2024] NSWDC 424
Case: [2024] NSWDC 424
Decision Date: 19 July 2024

CaseChat Overview and Summary

The case before the court was a criminal appeal brought by the respondent, Ware (a pseudonym), against his conviction and sentence for sexual intercourse with a child under the age of ten. The appeal was heard in the Supreme Court of New South Wales. The respondent had pleaded guilty to the charges and the case involved the sentencing of Ware, focusing on the objective seriousness of the offence and the mitigating factors that were presented.

The primary legal issues that the court had to address were the determination of the appropriate penalty for the offence of sexual intercourse with a child under ten, considering both the aggravating and mitigating factors presented. The court had to weigh the aggravating circumstances of the offence against the mitigating factors, which included the respondent's guilty plea, his alcohol addiction, mental health issues, his own history of childhood sexual abuse, and exposure to alcohol abuse and domestic violence during his own childhood. The court also needed to determine the objective seriousness of the offence and the appropriate non-parole period.

The court, in its judgment, carefully considered the aggravating and mitigating factors in accordance with the sentencing principles outlined in Australian case law. The court noted the gravity of the offence and its impact on the victim but also recognised the significant personal challenges that the respondent had faced throughout his life. The court applied the principle of instinctive synthesis in determining the appropriate penalty, balancing the need for deterrence with the respondent's personal circumstances. After considering all the factors, the court determined that an aggregate sentence of imprisonment of eight years, with a non-parole period of five years, was appropriate.

The final orders of the court were that the respondent, Ware, was to serve an aggregate sentence of imprisonment of eight years, with a non-parole period of five years. The court's decision reflected a careful and balanced approach to sentencing, taking into account the serious nature of the offence, the mitigating factors, and the need for appropriate deterrence and protection of the community.

Orders

Orders of the court

Aggregate sentence of imprisonment of 8 years with a non-parole period of 5 years

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Ware (a pseudonym) [2024] NSWDC 424
Hearing dates:	19 July 2024
Date of orders:	19 July 2024
Decision date:	19 July 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 8 years with a non-parole period of 5 years
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child <10 — Indecent assault with child >10 — Circumstances of aggravation — Sexual intercourse with child >10 <14 — Circumstances of aggravation SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness — Form 1 offences — Delay SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Alcohol addiction — Mental illness and disorders — Ill health — Advancing age — Childhood sexual abuse by father — Exposed to alcohol abuse and domestic violence in childhood
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act1999 (NSW) Sentence Procedure Act 1999 (NSW)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002; (2002) 56 NSWLR 146; [2013] NSWCCA 115 Carey v R [2024] NSWCCA 90 Kutchera v R [2007] NSWCCA 121 Magnuson v R [2013] NSWCCA 50 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 R v Cattell [2019] NSWCCA 297 RvTodd [1982] 2 NSWLR 517 R v Verdins [2007] VSCA 102 Wright v R [2008] NSWCCA 91
Texts Cited:	Australian Federal Government, Royal Commission, Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report (December 2017)
Category:	Sentence
Parties:	Aaron Ware (a pseudonym) (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: A Booker (for the offender) Solicitors: Legal Aid (NSW) (for the offender) A Bird solicitor for Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2020/311097
Publication restriction:	Pseudonyms have been used for the names of the offender and complainant. Pursuant to s15A Children (Criminal Proceedings) Act 1987 (NSW), 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