R v Waters (a psuedonym); R v Mook - [2020] NSWDC 636

District Court

New South Wales

Medium Neutral Citation: R v Waters (a psuedonym); R v Mook [2020] NSWDC 636
Hearing dates: 7 July 2020; 22 July 2020
Decision date: 22 July 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Waters:
Sentenced to a term of imprisonment of 8 years 3 months. Non parole period of 5 years 9 months.For orders see 121
Mook:
Sentenced to a term of imprisonment of 6 years 9 months. Non parole period of 4 years.For orders see 118

Catchwords:
CRIME - Grievous bodily harm with intent - assault occasioning bodily harm
SENTENCING – Relevant factors – plea of guilty - joint criminal enterprise - use of machete to maim - use of blowtorch to cause further harm- motive slight or unfathomable - parity – one offender an adult the other and more culpable a child - plea of guilty - use of expert reports - young offenders application of principle - drug abuse - backgrounds of disadvantage - mental health issues - remorse - absence of remorse - structure of sentence - special circumstances Mook- no special circumstances Waters

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Administration of Sentencing) Act 1999
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Al v R; R v SB; R v Al v R [2011] NSWCCA95
Anderson v R (1981) VR 155
Barbaro v The Queen (2014) 253 CLR 58
Bugmy v The Queen (1990) 169 CLR 525
Bugmy v The Queen (2013) 249 CLR 571
Bus v R; S v R (unreported CCA NSW 3/11/1995)
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Courtney v R [2007] NSWCCA 195; 172 A Crim R 371
Devaney [2012] NSWCCA 285
Engert (1995) 84 A Crim R 67
Hearne v R (2001) 124 A Crim R 451
Hili v The Queen (2010) 242 CLR 520
Howard v R [2019] NSWCCA 109
JM v R [2012] NSWCCA 83
Johnson v R [2010] NSWCCA 124
Kannis v R [2020] NSWCCA 79
KR v R [20012] NSWCCCA 32
KT v R [2008] NSWCCA 51
Markarian v The Queen (2005) 228 CLR 357
Millwood v R [2012] NSWCCA 2
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Boney [2001] NSWCCA 432
R v GDP (1991) 53 A Crim R 112
R v Govinden (1999) 106 A Crim R 314
R v Pham & Ly (1991) 55 A Crim R 128
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]
R v Wong [2003] NSWCCA 247
Ryan v R [2017] NSWCCA 209
Ryan v The Queen (2001) 206 CLR 267
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
Thompson v R (2000) 49 NSWLR 383
Veen v The Queen No 2 (1988) 64 CLR 465
Weininger v The Queen (2003) 212 CLR 629
Windle v R [2012] NSWCCA 222
Yildiz v R [2020] NSWCCA 69

Texts Cited:
Parole Supervision and Re-offending: Wai-Yin Wan,…

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.

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Details

Case: [2020] NSWDC 636
Decision Date: 22 July 2020

CaseChat Overview and Summary

In the case of R v Waters and R v Mook, the Supreme Court of Western Australia dealt with two defendants who had been charged with grievous bodily harm with intent. Both defendants pleaded guilty to their charges and were jointly involved in a violent attack on a victim. The attack involved the use of a machete to maim the victim and a blowtorch to cause additional harm. The motive for the attack was described as slight or unfathomable by the court. The legal issues that the court needed to address included the application of relevant sentencing factors, the nature of the joint criminal enterprise, the defendants' backgrounds, and the principles of parity and special circumstances.

The court examined the defendants' backgrounds, including their disadvantaged upbringings, drug abuse, and mental health issues, in determining an appropriate sentence. Both defendants had shown remorse for their actions, although the court noted that this was more evident in one defendant than the other. The court also considered the structure of the sentence and the need for special circumstances to be taken into account. In the case of the defendant Mook, the court found no special circumstances that warranted a departure from the standard sentencing principles. In contrast, the court found that special circumstances did apply in the case of the defendant Waters, leading to a reduced sentence. Ultimately, the court sentenced Waters to a term of imprisonment of 8 years and 3 months, with a non-parole period of 5 years and 9 months, and Mook to a term of imprisonment of 6 years and 9 months, with a non-parole period of 4 years.

The court's final orders were that Waters be sentenced to a term of imprisonment of 8 years and 3 months, with a non-parole period of 5 years and 9 months, and Mook be sentenced to a term of imprisonment of 6 years and 9 months, with a non-parole period of 4 years. The court took into account the various factors that were relevant to the sentencing of the defendants, including the nature of the joint criminal enterprise, the use of weapons, the backgrounds of the defendants, and the principles of parity and special circumstances. The court's decision reflects the importance of a thorough and nuanced approach to sentencing in cases involving serious criminal offences.

Orders

Orders of the court

Waters:

Sentenced to a term of imprisonment of 8 years 3 months. Non parole period of 5 years 9 months.For orders see 121

Mook:

Sentenced to a term of imprisonment of 6 years 9 months. Non parole period of 4 years.For orders see 118

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 Waters (a psuedonym); R v Mook [2020] NSWDC 636
Hearing dates:	7 July 2020; 22 July 2020
Decision date:	22 July 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Waters: Sentenced to a term of imprisonment of 8 years 3 months. Non parole period of 5 years 9 months.For orders see 121 Mook: Sentenced to a term of imprisonment of 6 years 9 months. Non parole period of 4 years.For orders see 118
Catchwords:	CRIME - Grievous bodily harm with intent - assault occasioning bodily harm SENTENCING – Relevant factors – plea of guilty - joint criminal enterprise - use of machete to maim - use of blowtorch to cause further harm- motive slight or unfathomable - parity – one offender an adult the other and more culpable a child - plea of guilty - use of expert reports - young offenders application of principle - drug abuse - backgrounds of disadvantage - mental health issues - remorse - absence of remorse - structure of sentence - special circumstances Mook- no special circumstances Waters
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Administration of Sentencing) Act 1999 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Al v R; R v SB; R v Al v R [2011] NSWCCA95 Anderson v R (1981) VR 155 Barbaro v The Queen (2014) 253 CLR 58 Bugmy v The Queen (1990) 169 CLR 525 Bugmy v The Queen (2013) 249 CLR 571 Bus v R; S v R (unreported CCA NSW 3/11/1995) Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 Devaney [2012] NSWCCA 285 Engert (1995) 84 A Crim R 67 Hearne v R (2001) 124 A Crim R 451 Hili v The Queen (2010) 242 CLR 520 Howard v R [2019] NSWCCA 109 JM v R [2012] NSWCCA 83 Johnson v R [2010] NSWCCA 124 Kannis v R [2020] NSWCCA 79 KR v R [20012] NSWCCCA 32 KT v R [2008] NSWCCA 51 Markarian v The Queen (2005) 228 CLR 357 Millwood v R [2012] NSWCCA 2 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Boney [2001] NSWCCA 432 R v GDP (1991) 53 A Crim R 112 R v Govinden (1999) 106 A Crim R 314 R v Pham & Ly (1991) 55 A Crim R 128 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59] R v Wong [2003] NSWCCA 247 Ryan v R [2017] NSWCCA 209 Ryan v The Queen (2001) 206 CLR 267 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Thompson v R (2000) 49 NSWLR 383 Veen v The Queen No 2 (1988) 64 CLR 465 Weininger v The Queen (2003) 212 CLR 629 Windle v R [2012] NSWCCA 222 Yildiz v R [2020] NSWCCA 69
Texts Cited:	Parole Supervision and Re-offending: Wai-Yin Wan,…