R v Wasarua

[2024] NSWDC 643

District Court

New South Wales

Medium Neutral Citation:

R v Wasarua [2024] NSWDC 643

Hearing dates:

12/8/24-23/8/24, 1/11/24, 15/11/24

Date of orders:

15/11/24

Decision date:

15 November 2024

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 5 years 6 months with a NPP of 3 years 8 months (22/8/24-21/4/28).

I find special circumstances.

Indicatives:

Count 1 – 4 years 2 months with NPP 2 years 9 months

Count 2 – 5 years 3 months with NPP 3 years 6 months.

Catchwords:

Crime – Sentence – Sexual intercourse without consent

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Commonwealth DPP v De La Rosa (2010) 79 NSWLR 1

Category:

Sentence

Parties:

NSW DPP – Crown
Timoci Wasarua - Offender

Representation:

Mr H Sutherland for Crown
Mr I Wallach for Offender

File Number(s):

22/332923

Publication restriction:

Statutory non-publication of the identity of the victim.

remarks on sentence

1. The offender, Mr Wasarua, stood trial between 12 and 26 August 2024, at the District Court at Parramatta on an indictment containing two counts of sexual intercourse without consent. On that latter date, the jury found the offender guilty of both counts.

2. I note that a sentence hearing was set for Friday, 1 November 2024 but the proceedings were only partly completed that day because counsel for the offender indicated that he may wish to tender some additional evidence and make further submissions. Although no adequate explanation was provided as to why these matters had not been attended to in a timely fashion, I directed that any further material be filed and served by 5 November 2024. Despite that direction, no material was received until the afternoon of 12 November, when supplementary written submissions were filed on behalf of the offender and, on the morning of 13 November 2024, two letters were filed and served.

3. It is, of course, open to me to ignore this material, given that it was filed well outside the timetable, and with no explanation as to why that was so. Although that course of action has some attraction, it seems to me that it may involve punishing the offender himself for the apparent inadequacies of his legal representation. I will, therefore, have regard to this additional material to which I will make reference later in these remarks.

4. The offender is to be sentenced for two offences under s 61I of the Crimes Act 1900. Each offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of seven years is specified. The maximum penalty and the standard non-parole period are important guide posts in the sentencing exercise to which I have had regard.

FACTS

5. Turning to factual matters, given that this was a finding of guilt after trial, the facts are for me to determine but must be consistent with the jury’s verdicts. Any aggravating matters need to be proved to the standard of beyond reasonable doubt, whereas any matters in mitigation need only…