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R v Warner (a pseudonym)

R v Warner (a pseudonym)

Case [2020] NSWDC 575 18 September 2020

Aggravated Indecent Assault

Sentencing

Statutory Interpretation

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Warner (a pseudonym) [2020] NSWDC 575
Hearing dates: 18 September 2020
Decision date: 18 September 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Without proceeding to a conviction I discharge the offender on a Conditional Release order. See [41] .

Catchwords:
CRIME - Aggravated Indecent Assault of a child - multiple victims
CRIME — Sexual offences - declaration offender is not registerable person Child Protection (Offenders Registration) Act 2000
CRIMINAL PROCEDURE — Trial — jury verdicts – acquittals and convictions
SENTENCING - relevant factors – sentence after trial – delay - very young at time of offending but adult when charged – no option other than to deal with offender at law - impact of delay - otherwise of good character – one-off offences - is a conviction required?
STATUTORY INTERPRETATION — Legislative purpose — objects of legislation - s 33 Interpretation Act 1987 (NSW) - s14 Children (Criminal Proceedings) Act 1987

Legislation Cited:
Child Protection (Offenders Registration) Act 2000
Children (Criminal Proceedings Act 1987
Children (Criminal Proceedings Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Interpretation Act 1987 (NSW)

Cases Cited:
Bignill v DPP [2016] NSWCA 13
BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
Clarkson v R [2011] VSCA 152
Corby v R [2010] NSWCCA 146
Dungay v R [2020] NSWCCA 209
Howard v R [2019] NSWCCA 109
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Magnuson v R [2013] NSWCCA 50
Markuleski v R [2001] NSWCCA 290; (2001) 52 NSWLR 82
Mill v The Queen (1988) 166 CLR 59
Project Blue Sky Incv Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Cattell [2019] NSWCCA 297
R v El Masri [2005] NSWCCA 167
R v Gavel [2014] NSWCCA 56
R v GDP (1991) 53 A Crim R 112
R v Hogan [2008] NSWCCA 43
R v Ingrassia (1997) 41 NSWLR 447
R v Mauger [2012] NSWCCA 51
R v Nelson [2016] NSWCCA 130
RvTodd [1982] 2 NSWLR 517
R v Wilcox (15 August 1979, unreported)
Van Ryn v R [2016] NSWCCA 243
Wakeling v R [2016] NSWCCA 43
Zreika v R [2012] NSWCCA 44

Texts Cited:
Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Impacts, Volume 3, pages 9 - 11

Category: Sentence
Parties: Joe Warner (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr S Fraser, Public Defender (for the offender)
Mr D Coulton, Solicitor Advocate (for the Director of Public Prosecutions)
Solicitors:
Legal Aid NSW (for the offender)

File Number(s): 2019/00230451
Publication restriction: Pseudonyms have been used for the names of the offender and the child victims.
Pursuant to s15A Children (Criminal Proceedings) Act 1987 and 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 offender or other children. Identifying information has…

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 Warner (a pseudonym)

Details

AGLC: R v Warner (a pseudonym) [2020] NSWDC 575
Case: [2020] NSWDC 575
Decision Date: 18 September 2020

CaseChat Overview and Summary

The matter of R v Warner was heard in the Supreme Court of New South Wales. The defendant, Warner, was charged with aggravated indecent assault of multiple child victims. The court was required to determine whether Warner was a registerable person under the Child Protection (Offenders Registration) Act 2000 and whether the court should proceed to a conviction or consider alternative sentencing options due to the significant delay between the time of the offending and the time of the trial.

The legal issues before the court included the interpretation of the Child Protection (Offenders Registration) Act 2000, the relevance of the delay in bringing charges, the age of the offender at the time of the offending and at the time of trial, and the impact of the delay on the sentencing options available. The court had to balance the need to protect the community against the potential unfairness of delayed prosecution, as well as the offender's otherwise good character and the one-off nature of the offences.

The court found that Warner was not a registerable person under the Child Protection (Offenders Registration) Act 2000 due to the delay in prosecution and the fact that he was very young at the time of the offending but an adult when charged. The court considered the objects of the relevant legislation and concluded that the delay had significantly impacted the fairness of the prosecution. The court also noted that Warner was of good character and the offences were one-off incidents. Ultimately, the court decided that it was not necessary to proceed to a conviction and discharged Warner on a Conditional Release order, reflecting the unique circumstances of the case.

The court's final order was to discharge Warner on a Conditional Release order without proceeding to a conviction, as detailed in [41]. This decision underscores the importance of considering the specific circumstances of each case when determining the appropriate course of action, especially in cases involving significant delays and youthful offenders.

Orders

Orders of the court

Without proceeding to a conviction I discharge the offender on a Conditional Release order. See [41] .

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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Citations

AGLC Citation

R v Warner (a pseudonym) [2020] NSWDC 575

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 22 of 22 shown

Dungay v R
[2020] NSWCCA 209 Para 35

…effect be given to a period of not offending were recently reinforced, all be it in a different context, by the Court of Criminal Appeal: Dungay v R [2020] NSWCCA 209.…
R v Cattell
[2019] NSWCCA 297 Para 19

…they have escaped justice and enjoyed a life free from opprobrium or punishment for their crimes: Magnuson v R [2013] NSWCCA 50 at [62]: R v Cattell [2019] NSWCCA 297.…
Howard v R
[2019] NSWCCA 109 Para 30

…velop progressively during childhood: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379; Howard v R [2019] NSWCCA 109. In R v GDP (1991) 53 A Crim R 112, the court referred to the decision in R v Wilcox (15 August 1979, unreported) where Justice Yeldham remarked duri…
Nash v Silver City Drilling (NSW) Pty Ltd
[2017] NSWCA 100 Para 28

…uld be meet by a Conditional Release Order without a conviction being recorded, noting what was said in R v Mauger [2012] NSWCCA 51 and R v Ingrassia (1997) 41 NSWLR 447 at 449.…
Leffley v The Queen
[2016] NSWCCA 243 Para 12

…s of considerable significance in assessing the objective seriousness of indecent assaults against children: Corby v R [2010] NSWCCA 146; Van Ryn v R [2016] NSWCCA 243.…
R v Nelson
[2016] NSWCCA 130 Para 15

…he lack of opposition shown by the complainants was relevant to my assessment of the objective gravity of the offending. He referred me to R v Nelson [2016] NSWCCA 130, R v Hogan [2008] NSWCCA 43 and Wakeling v R [2016] NSWCCA 43: MFI 2. With respect, given the age of both complainants relative to the offender, thei…
O'Connell v R
[2016] NSWCCA 43 Para 15

…my assessment of the objective gravity of the offending. He referred me to R v Nelson [2016] NSWCCA 130, R v Hogan [2008] NSWCCA 43 and Wakeling v R [2016] NSWCCA 43: MFI 2. With respect, given the age of both complainants relative to the offender, their position as foster children in his home and their evidence t…
Bignill v DPP
[2016] NSWCA 13 Para 33

…ure of the C (CP) Act and longstanding principles relating to how the law applies to those who commit crimes when aged just 14: Bignill v DPP [2016] NSWCA 13; s 33 of the Interpretation Act 1987 (NSW); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].…
R v Gavel
[2014] NSWCCA 56 Para 11

…protect children from the physical and psychological harm taken to be caused by premature sexual activity”: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56.…
Magnuson v R
[2013] NSWCCA 50 Para 19

…gain. That is because during the delay they have escaped justice and enjoyed a life free from opprobrium or punishment for their crimes: Magnuson v R [2013] NSWCCA 50 at [62]: R v Cattell [2019] NSWCCA 297.…
R v Mauger
[2012] NSWCCA 51 Para 28

…s all the purposes of sentencing could be meet by a Conditional Release Order without a conviction being recorded, noting what was said in R v Mauger [2012] NSWCCA 51 and R v Ingrassia (1997) 41 NSWLR 447 at 449.…
Zreika v R
[2012] NSWCCA 44 Para 21

…t; ss 17 & 18 Children (Criminal Proceedings Act 1987 ( C (CP) Act ). The probability of summary disposal here is a mitigating factor: Zreika v R [2012] NSWCCA 44; R v El Masri [2005] NSWCCA 167. Had Warner been sentenced by the Children’s Court convictions could not have been recorded: s 14 (1) C (CP) Act . See [3…
Clarkson v R
[2011] VSCA 152 Para 11

…ly imposed are intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity”: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56.…
BP v R
[2010] NSWCCA 159 Para 30

…cognised that emotional maturity and impulse control develop progressively during childhood: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379; Howard v R [2019] NSWCCA 109. In R v GDP (1991) 53 A Crim R 112, the court referred to the decision in R v Wilcox (15 Augus…
Corby v R
[2010] NSWCCA 146 Para 12

…of physical contact involved, is of considerable significance in assessing the objective seriousness of indecent assaults against children: Corby v R [2010] NSWCCA 146; Van Ryn v R [2016] NSWCCA 243.…
BJR v R
[2008] NSWCCA 43 Para 15

…y the complainants was relevant to my assessment of the objective gravity of the offending. He referred me to R v Nelson [2016] NSWCCA 130, R v Hogan [2008] NSWCCA 43 and Wakeling v R [2016] NSWCCA 43: MFI 2. With respect, given the age of both complainants relative to the offender, their position as foster childre…
KT v R
[2008] NSWCCA 51 Para 30

…ute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during childhood: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379; Howard v R [2019] NSWCCA 109. In R v GDP (1991) 53 A Crim R 112, the cou…
R v El Masri
[2005] NSWCCA 167 Para 21

…l Proceedings Act 1987 ( C (CP) Act ). The probability of summary disposal here is a mitigating factor: Zreika v R [2012] NSWCCA 44; R v El Masri [2005] NSWCCA 167. Had Warner been sentenced by the Children’s Court convictions could not have been recorded: s 14 (1) C (CP) Act . See [32-36] below.…
R v Markuleski
[2001] NSWCCA 290 Para 4

…whether counts had been proved beyond reasonable doubt. The jury were given, what is commonly referred to as, a Markuleski direction: Markuleski v R [2001] NSWCCA 290; (2001) 52 NSWLR 82. The only evidence implicating Warner on each of the 13 counts charged came from the complainants. Counts 5 and 11 were the only…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53 Para 33

…ill v DPP [2016] NSWCA 13; s 33 of the Interpretation Act 1987 (NSW); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 28 Para 33

…d just 14: Bignill v DPP [2016] NSWCA 13; s 33 of the Interpretation Act 1987 (NSW); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].…
Mill v The Queen
[1988] HCA 70 Para 20

…after a long delay requires a considerable measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517 at 519; Mill v The Queen (1988) 166 CLR 59 at [14]. Here, Warner offended on one occasion and apparently ceased offending without formal intervention. The delay in bringing the matter before t…

Legislation cited in this decision · 6

Child Protection (Offenders Registration) Act 2000 (NSW)
1 mention (from Para 37)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Children’s Criminal Proceedings Act 1987 (NSW)
1 mention (from Para 21)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 16)
Crimes Act 1900 (ACT)
1 mention (from Para 2)
Interpretation Act 1987 (NSW)
1 mention (from Para 33)

Medium Neutral Citation:	R v Warner (a pseudonym) [2020] NSWDC 575
Hearing dates:	18 September 2020
Decision date:	18 September 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Without proceeding to a conviction I discharge the offender on a Conditional Release order. See [41] .
Catchwords:	CRIME - Aggravated Indecent Assault of a child - multiple victims CRIME — Sexual offences - declaration offender is not registerable person Child Protection (Offenders Registration) Act 2000 CRIMINAL PROCEDURE — Trial — jury verdicts – acquittals and convictions SENTENCING - relevant factors – sentence after trial – delay - very young at time of offending but adult when charged – no option other than to deal with offender at law - impact of delay - otherwise of good character – one-off offences - is a conviction required? STATUTORY INTERPRETATION — Legislative purpose — objects of legislation - s 33 Interpretation Act 1987 (NSW) - s14 Children (Criminal Proceedings) Act 1987
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Children (Criminal Proceedings Act 1987 Children (Criminal Proceedings Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Interpretation Act 1987 (NSW)
Cases Cited:	Bignill v DPP [2016] NSWCA 13 BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Clarkson v R [2011] VSCA 152 Corby v R [2010] NSWCCA 146 Dungay v R [2020] NSWCCA 209 Howard v R [2019] NSWCCA 109 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Magnuson v R [2013] NSWCCA 50 Markuleski v R [2001] NSWCCA 290; (2001) 52 NSWLR 82 Mill v The Queen (1988) 166 CLR 59 Project Blue Sky Incv Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Cattell [2019] NSWCCA 297 R v El Masri [2005] NSWCCA 167 R v Gavel [2014] NSWCCA 56 R v GDP (1991) 53 A Crim R 112 R v Hogan [2008] NSWCCA 43 R v Ingrassia (1997) 41 NSWLR 447 R v Mauger [2012] NSWCCA 51 R v Nelson [2016] NSWCCA 130 RvTodd [1982] 2 NSWLR 517 R v Wilcox (15 August 1979, unreported) Van Ryn v R [2016] NSWCCA 243 Wakeling v R [2016] NSWCCA 43 Zreika v R [2012] NSWCCA 44
Texts Cited:	Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Impacts, Volume 3, pages 9 - 11
Category:	Sentence
Parties:	Joe Warner (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender) Mr D Coulton, Solicitor Advocate (for the Director of Public Prosecutions) Solicitors: Legal Aid NSW (for the offender)
File Number(s):	2019/00230451
Publication restriction:	Pseudonyms have been used for the names of the offender and the child victims. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and 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 offender or other children. Identifying information has…