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
Kutchera v R [2007] NSWCCA 121
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
RvTodd [1982] 2 NSWLR 517
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:
Solicitors:
A Booker (for the offender)
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
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Pseudonyms will be used and there is to be no publication of the name that might identify either the complainant or the offender.
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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.
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Aaron Ware committed serious offences against a child who viewed him as…
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- AGLC
- R v Ware (a pseudonym) [2024] NSWDC 424
- Case
- [2024] NSWDC 424
- Decision Date
CaseChat Overview and Summary
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
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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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