R v WD - [2023] NSWDC 542

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v WD [2023] NSWDC 542
Hearing dates: 5 December 2023
Decision date: 05 December 2023
Jurisdiction: Criminal
Before: Coleman SC DCJ
Decision:
(1) For the offences for which he pleaded guilty, the offender is convicted.
(2) For Sequences 3, 5 and 6, the offender is sentenced to an aggregate term of imprisonment for a period of 4 years, with a non-parole period of 2 years 2 months, to date from 11 October 2022. The first date the offender is eligible for release to parole is 10 December 2024. The head sentence will expire on 10 October 2026.
(3) The indicative sentences for each offence (including 25% discount) are as follows:
(a) Sequence 3: 1 year 3 months imprisonment
(b) Sequence 5: 2 years 6 months imprisonment
(c) Sequence 6: 2 years imprisonment
(4) I recommend that, on release to parole, the offender engages in any sexual offender programs (or other programs) to aid in his rehabilitation that Community Corrections considers necessary and appropriate.

Catchwords:
CRIME – Child sex offences – Multiple offences – Intentionally sexually touch child 10 years or older and under 16 years – Aggregate sentence

Legislation Cited:
Crimes Act 1900 (NSW), s 66DB
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25D, 53A

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518
Bravo v R [2015] NSWCCA 302
DG v R [2017] NSWCCA 139
Ibbotson (A Pseudonym) v R [2020] NSWCCA 92
Johnson v The Queen [2004] HCA 15
R v Chan [2000] NSWCCA 345
R v MAK [2006] NSWCCA 381
RH McL v The Queen (2000) 203 CLR 452

Category: Sentence
Parties: WD (Offender)
Director for Public Prosecutions (Crown)
Representation:
Counsel:
J Hibbard (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Total Legal (Offender)

File Number(s): 2022/00303316
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is a statutory non-publication order in regard to any matter which identifies the complainant or which is likely to lead to the identification of the complainant. The identity of the offender is anonymised as WD.

JUDGMENT

The offender, WD, is to be sentenced today for three offences of intentionally sexually touch a child 10 years or older and under 16 years (being Sequences 3, 5 and 6). This is an offence under s 66DB(a) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 10 years’ imprisonment with no standard non-parole period.
The offender also asks that one further offence of intentionally sexually touch a child 10 years or older and under 16 years be taken into account on a Form 1 in relation to Sequence 3. This offence is Sequence 2.
The offender pleaded guilty to the offences at the earliest opportunity and is thus entitled to a 25% discount on any sentence imposed on him to…

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 WD

Details

AGLC: R v WD [2023] NSWDC 542
Case: [2023] NSWDC 542
Decision Date: 05 December 2023

CaseChat Overview and Summary

The appellant, WD, was brought before the court in relation to multiple offences involving the intentional sexual touching of a child aged between 10 and 16 years. The court heard the matter and was required to determine the appropriate aggregate sentence considering the nature and seriousness of the offences. The decision hinged on the need to balance punishment, deterrence, and rehabilitation, particularly given the vulnerability of the victim.

The court had to decide the appropriate aggregate term of imprisonment, the non-parole period, and the indicative sentences for each offence, taking into account the need for proportionality and the discount provided by the guilty plea. The court considered the severity of the offences, the offender's criminal history, and the principles of sentencing in cases of sexual offences against children. The court also examined the offender's potential for rehabilitation and the benefits of engaging in sexual offender programs upon release.

In determining the sentence, the court found that the offences were serious and warranted a substantial term of imprisonment. The court imposed an aggregate sentence of 4 years, with a non-parole period of 2 years and 2 months, to date from the offender's date of imprisonment. The court also set indicative sentences for each offence, applying a 25% discount for the guilty plea. The court recommended that the offender engage in any necessary rehabilitation programs upon release to parole to aid in his rehabilitation and reduce the risk of reoffending.

Orders

Orders of the court

(1) For the offences for which he pleaded guilty, the offender is convicted.

(2) For Sequences 3, 5 and 6, the offender is sentenced to an aggregate term of imprisonment for a period of 4 years, with a non-parole period of 2 years 2 months, to date from 11 October 2022. The first date the offender is eligible for release to parole is 10 December 2024. The head sentence will expire on 10 October 2026.

(3) The indicative sentences for each offence (including 25% discount) are as follows:

(a) Sequence 3: 1 year 3 months imprisonment

(b) Sequence 5: 2 years 6 months imprisonment

(4) I recommend that, on release to parole, the offender engages in any sexual offender programs (or other programs) to aid in his rehabilitation that Community Corrections considers necessary and appropriate.

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 WD [2023] NSWDC 542
Hearing dates:	5 December 2023
Decision date:	05 December 2023
Jurisdiction:	Criminal
Before:	Coleman SC DCJ
Decision:	(1) For the offences for which he pleaded guilty, the offender is convicted. (2) For Sequences 3, 5 and 6, the offender is sentenced to an aggregate term of imprisonment for a period of 4 years, with a non-parole period of 2 years 2 months, to date from 11 October 2022. The first date the offender is eligible for release to parole is 10 December 2024. The head sentence will expire on 10 October 2026. (3) The indicative sentences for each offence (including 25% discount) are as follows: (a) Sequence 3: 1 year 3 months imprisonment (b) Sequence 5: 2 years 6 months imprisonment (c) Sequence 6: 2 years imprisonment (4) I recommend that, on release to parole, the offender engages in any sexual offender programs (or other programs) to aid in his rehabilitation that Community Corrections considers necessary and appropriate.
Catchwords:	CRIME – Child sex offences – Multiple offences – Intentionally sexually touch child 10 years or older and under 16 years – Aggregate sentence
Legislation Cited:	Crimes Act 1900 (NSW), s 66DB Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25D, 53A
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518 Bravo v R [2015] NSWCCA 302 DG v R [2017] NSWCCA 139 Ibbotson (A Pseudonym) v R [2020] NSWCCA 92 Johnson v The Queen [2004] HCA 15 R v Chan [2000] NSWCCA 345 R v MAK [2006] NSWCCA 381 RH McL v The Queen (2000) 203 CLR 452
Category:	Sentence
Parties:	WD (Offender) Director for Public Prosecutions (Crown)
Representation:	Counsel: J Hibbard (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Total Legal (Offender)
File Number(s):	2022/00303316
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is a statutory non-publication order in regard to any matter which identifies the complainant or which is likely to lead to the identification of the complainant. The identity of the offender is anonymised as WD.