R v Watkins - [2018] NSWDC 103

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Watkins [2018] NSWDC 103
Hearing dates: 7 February 2018
Date of orders: 23 March 2018
Decision date: 23 March 2018
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
I make the following orders:
1 For the offences the subject of the bond, dated 23 July 2015 (2015/65752), the Offender is sentenced as follows:
(a) For the offence of Use of Offensive Weapon with Intent to Commit Indictable Offence, namely Intimidation, I impose a sentence of 12 months imprisonment;
(b) For the offence of Intimidate with Intention of causing Fear of Physical or Mental Harm, I impose a sentence of 12 months imprisonment;
(c) For the offence of Common Assault, I impose a sentence of 12 months imprisonment.
Those sentences will be served concurrently and commence on 13 February 2016 and expire on 12 February 2017. In light of the further sentences I am to impose I decline to specify a non-parole period but will account for the length of time in custody in fixing the appropriate ratio of non-parole to parole.
2 On each of Counts 1 to 9 the offender is convicted (2016/47184; 2016/226688).
3 In relation to the matters for which the offender is to be sentenced before (2016/47184; 2016/226688) me I impose an aggregate sentence of 9 years imprisonment, pursuant to s 53A of the 1999 Act to commence from 13 February 2017 to expire on 12 February 2022. Thereafter the offender shall be eligible to be released to parole from 13 February 2022 to expire on 12 February 2026.
4 The indicative terms that I would impose are as follows:-
(1) Count 1 (AOABH): but for the plea of guilty I would have imposed a sentence of 2 years imprisonment. In light of the plea I would have imposed a sentence 1 year and 8 months
(2) Count 2 (AOABH): but for the plea of guilty I would have imposed a sentence of 2 years and 6 months imprisonment. In light of the plea I would have impose a sentence of 2 year and 1 month (taking into account the matter on the Form1)
(3) Count 3 (Common Assault): but for the plea of guilty I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months.
(4) Count 4 (Common Assault) but for the plea of guilty I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months imprisonment.
(5) Count 5 (Common Assault) but for the plea of guilty I would have impose a sentence of 12 months imprisonment but in light of the plea I would have imposed a sentence of 10 months imprisonment.
(6) Count 6 (AOABH): but for the plea of guilty I would have imposed a sentence of 2 years imprisonment however in light of the plea I would have imposed a sentence…

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 Watkins

Details

AGLC: R v Watkins [2018] NSWDC 103
Case: [2018] NSWDC 103
Decision Date: 23 March 2018

CaseChat Overview and Summary

In the matter of R v Watkins, the defendant was charged with multiple offences including the use of an offensive weapon with intent to commit an indictable offence, intimidation, and assault occasioning actual bodily harm. The case was heard by the court, which needed to determine various legal issues surrounding the sentencing and conviction of the defendant. The primary issues included the assessment of aggravating and mitigating factors, the appropriate sentence for each offence, and the consideration of the defendant's plea of guilty. The court had to weigh the defendant's history of previous convictions, the nature of the offences committed while on conditional liberty, and the specific circumstances of each offence against the mitigating factors such as remorse and the plea of guilty.

The court carefully considered the aggravating factors, including the fact that the offences were committed in the victim's home, the defendant's history of prior convictions, and the nature of the offences which were committed while the defendant was on conditional liberty. The court also took into account the defendant's remorse, though it noted that self-intoxication would not be considered as a mitigating factor. The court applied a 15% discount for the plea of guilty to the indicative terms for each offence. The court concluded that the appropriate sentences for the offences under the bond were 12 months imprisonment each, to be served concurrently, with the sentences commencing on 13 February 2016 and expiring on 12 February 2017. For the additional charges, the court imposed an aggregate sentence of 9 years imprisonment, with eligibility for parole from 13 February 2022.

In light of the defendant's plea of guilty and the specific circumstances of each offence, the court set the indicative terms for each charge. For the assault occasioning actual bodily harm charges, the court set indicative sentences of 1 year and 8 months and 2 years and 1 month, respectively. For the common assault charges, the court set indicative sentences ranging from 10 months to 12 months. For the sexual assault without consent, the court set an indicative sentence of 5 years and 1 month, with a non-parole period of 3 years and 6 months. The court's final orders included the imposition of the aforementioned sentences and the setting of eligibility for parole from 13 February 2022.

Orders

Orders of the court

I make the following orders:

1 For the offences the subject of the bond, dated 23 July 2015 (2015/65752), the Offender is sentenced as follows:

(a) For the offence of Use of Offensive Weapon with Intent to Commit Indictable Offence, namely Intimidation, I impose a sentence of 12 months imprisonment;

(b) For the offence of Intimidate with Intention of causing Fear of Physical or Mental Harm, I impose a sentence of 12 months imprisonment;

Those sentences will be served concurrently and commence on 13 February 2016 and expire on 12 February 2017. In light of the further sentences I am to impose I decline to specify a non-parole period but will account for the length of time in custody in fixing the appropriate ratio of non-parole to parole.

2 On each of Counts 1 to 9 the offender is convicted (2016/47184; 2016/226688).

3 In relation to the matters for which the offender is to be sentenced before (2016/47184; 2016/226688) me I impose an aggregate sentence of 9 years imprisonment, pursuant to s 53A of the 1999 Act to commence from 13 February 2017 to expire on 12 February 2022. Thereafter the offender shall be eligible to be released to parole from 13 February 2022 to expire on 12 February 2026.

4 The indicative terms that I would impose are as follows:-

(1) Count 1 (AOABH): but for the plea of guilty I would have imposed a sentence of 2 years imprisonment. In light of the plea I would have imposed a sentence 1 year and 8 months

(2) Count 2 (AOABH): but for the plea of guilty I would have imposed a sentence of 2 years and 6 months imprisonment. In light of the plea I would have impose a sentence of 2 year and 1 month (taking into account the matter on the Form1)

(3) Count 3 (Common Assault): but for the plea of guilty I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months.

(4) Count 4 (Common Assault) but for the plea of guilty I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months imprisonment.

(5) Count 5 (Common Assault) but for the plea of guilty I would have impose a sentence of 12 months imprisonment but in light of the plea I would have imposed a sentence of 10 months imprisonment.

(6) Count 6 (AOABH): but for the plea of guilty I would have imposed a sentence of 2 years imprisonment however in light of the plea I would have imposed a sentence of 1 years and 8 months imprisonment

(7) Count 7 (Common Assault): but for the plea I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months imprisonment.

(8) Count 8 (Sexual Assault without Consent): but for the plea I would I would have imposed a sentence of 6 years imprisonment but in light of the plea I would have imposed a sentence of 5 years and 1 month imprisonment. The non-parole period I would have set is 3 years and 6 months.

(9) Count 9 (Common Assault): but for the plea of guilty I would have imposed a sentence of 18 months imprisonment however in light of the plea I would have imposed a sentence of 15 months imprisonment.

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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Medium Neutral Citation:	R v Watkins [2018] NSWDC 103
Hearing dates:	7 February 2018
Date of orders:	23 March 2018
Decision date:	23 March 2018
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	I make the following orders: 1 For the offences the subject of the bond, dated 23 July 2015 (2015/65752), the Offender is sentenced as follows: (a) For the offence of Use of Offensive Weapon with Intent to Commit Indictable Offence, namely Intimidation, I impose a sentence of 12 months imprisonment; (b) For the offence of Intimidate with Intention of causing Fear of Physical or Mental Harm, I impose a sentence of 12 months imprisonment; (c) For the offence of Common Assault, I impose a sentence of 12 months imprisonment. Those sentences will be served concurrently and commence on 13 February 2016 and expire on 12 February 2017. In light of the further sentences I am to impose I decline to specify a non-parole period but will account for the length of time in custody in fixing the appropriate ratio of non-parole to parole. 2 On each of Counts 1 to 9 the offender is convicted (2016/47184; 2016/226688). 3 In relation to the matters for which the offender is to be sentenced before (2016/47184; 2016/226688) me I impose an aggregate sentence of 9 years imprisonment, pursuant to s 53A of the 1999 Act to commence from 13 February 2017 to expire on 12 February 2022. Thereafter the offender shall be eligible to be released to parole from 13 February 2022 to expire on 12 February 2026. 4 The indicative terms that I would impose are as follows:- (1) Count 1 (AOABH): but for the plea of guilty I would have imposed a sentence of 2 years imprisonment. In light of the plea I would have imposed a sentence 1 year and 8 months (2) Count 2 (AOABH): but for the plea of guilty I would have imposed a sentence of 2 years and 6 months imprisonment. In light of the plea I would have impose a sentence of 2 year and 1 month (taking into account the matter on the Form1) (3) Count 3 (Common Assault): but for the plea of guilty I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months. (4) Count 4 (Common Assault) but for the plea of guilty I would have imposed a sentence of 15 months imprisonment but in light of the plea I would have imposed a sentence of 12 months imprisonment. (5) Count 5 (Common Assault) but for the plea of guilty I would have impose a sentence of 12 months imprisonment but in light of the plea I would have imposed a sentence of 10 months imprisonment. (6) Count 6 (AOABH): but for the plea of guilty I would have imposed a sentence of 2 years imprisonment however in light of the plea I would have imposed a sentence…