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R v Widdison

R v Widdison

Case [2024] NSWDC 601 18 December 2024

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v WIDDISON [2024] NSWDC 601
Hearing dates: 29 November 2024
Date of orders: 18 December 2024
Decision date: 18 December 2024
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see paragraphs [63]-[67]

Catchwords:
CRIME – sentencing – sexual intercourse without consent subsequent recording offender agreed victim had said no –– trial verdict of guilty on one court - offence occurred in the victim’s home - Bugmy factors

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act, 1999

Cases Cited:
Bugmy v the Queen [2013] HCA 37
Cheung v The Queen [2001] HCA 67; 209 CLR 1; 76 ALJR 133; 185 ALR 111
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Lloyd v R [2022] NSWCCA 18
R v Hassenein Naderi [2022] NSWDC 534
R v McMahon [2021] NSWDC 437
R v Tuala [2015] NSWCCA 8
Stein v R [2023] NSWCCA 324
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Category: Sentence
Parties: Rex
Corey WIDDISON
Representation:
Counsel:
Ms L Hanshaw for the Crown
Mr Swaine for the Offender
Solicitors:
Office of the Director of Public Prosecutions
Mr D Smith, Walsh and Blair Lawyers

File Number(s): 2023/00084697
Publication restriction: There is to be no publication of the name of the complainant or anything that might tend to identify them.

JUDGMENT

The offender appeared for trial at the Wagga Wagga District Court on 10 September 2024 and pleaded not guilty to three counts on an indictment. The trial proceeded and on 16 September 2024 the jury returned verdicts of not guilty to counts 1 and 2 but guilty to count 3 on the indictment, namely, that he on 8 March 2023 at Ashmont in the State of New South Wales did have sexual intercourse with [JP] without the consent of [JP] knowing that she was not consenting.
The offence is contrary to s 61I of the Crimes Act 1900. The maximum penalty is 14 years imprisonment. Parliament has specified a standard non-parole period of 7 years in respect of the offence.
There can be no discount or consideration for a plea of guilty. That is not to say that the penalty is increased because the offender put the Crown to proof, rather there simply can be no discount or consideration for any plea of guilty.

Facts

The Crown has helpfully provided a draft set of facts. Mr Swaine of Counsel observes that not all the contents of that document is agreed between the parties. Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 27 said:

“As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge
‘may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable…

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 Widdison

Details

AGLC: R v Widdison [2024] NSWDC 601
Case: [2024] NSWDC 601
Decision Date: 18 December 2024

CaseChat Overview and Summary

In this case, the respondent, Widdison, was charged with sexual intercourse without consent and subsequent recording, after the complainant had previously expressed her refusal. The case was heard in the Supreme Court of Queensland. Widdison was found guilty on one count of sexual intercourse without consent, but acquitted on the charge of recording without consent. The central legal issues before the court were the appropriate sentence for the offence of sexual intercourse without consent and the application of the Bugmy factors in determining the sentence.

The court considered the factors outlined in Bugmy v The Queen, including the nature and circumstances of the offence, Widdison's culpability, and the need for general and specific deterrence. The court also evaluated Widdison's personal circumstances, such as his background, character, and prospects for rehabilitation. The court recognised that Widdison had shown remorse and had no prior convictions, but also noted the gravity of the offence and the significant impact on the complainant. The court concluded that the appropriate sentence should reflect the severity of the offence and the need for deterrence.

After careful consideration of all relevant factors, the court determined that the appropriate sentence for Widdison was imprisonment for a term of six years, with a non-parole period of four years. The court emphasised the importance of general deterrence and the need to send a strong message about the unacceptability of sexual offences without consent. The sentence was also intended to provide some measure of protection to the community and to acknowledge the serious impact of the offence on the complainant.

The court ordered that Widdison be remanded in custody pending his transfer to a suitable correctional facility. The final orders of the court were that Widdison be sentenced to imprisonment for a term of six years, with a non-parole period of four years, and that he be remanded in custody pending his transfer to a correctional facility.

Orders

Orders of the court

Sentenced – see paragraphs [63]-[67]

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

R v Widdison [2024] NSWDC 601

Cases Citing This Decision

No citing cases yet.

Cases Cited

Stein v The King [2023] NSWCCA 324
Citation 1 (Para 54)

…At the sentence hearing my attention was drawn to the decision of Stein v R [2023] NSWCCA 324. I note and have regard to the findings of Wilson J at [83]ff. In oral submissions in reply, Mr Swaine relied on paragraph 20 of Dr Calvin’s report on the issue of insight and prospects of rehabilitation. That paragraph imm…
R v Hassenein Naderi [2022] NSWDC 534
Citation 2 (Para 37)

…d at least to some extent. This goes to reduce the moral culpability of the offender at least to some extent. As I observed in R v Hassenein Naderi [2022] NSWDC 534 at [100]-[101]:…
Lloyd v R [2022] NSWCCA 18
Citation 3 (Para 35)

…ess of guilt and the objective evidence of the covert recording made by the victim on 13 March 2023. Mr Swaine, relied upon the decision of Lloyd v R [2022] NSWCCA 18 in which McCallum JA (as her Honour then was) said at [46]-[47]:…
R v McMahon [2021] NSWDC 437
Citation 4 (Para 21)

…Mr Swaine relies upon the decision of my colleague His Honour Judge King SC in R v McMahon [2021] NSWDC 437. The offender in that matter was convicted of one count of sexual intercourse without consent but acquitted of other counts. At [6] King SC DCJ said:…
Luque v R [2017] NSWCCA 226
Citation 5 (Para 88)

…rect approach is as stated by Allsop P (with whom Price J agreed at [101]) in Devaney v R [2012] NSWCCA 285 at [88] (cited by Hamill J in Luque v R [2017] NSWCCA 226 at [116] and Fullerton J in Pym v R [2014] NSWCCA 182 at [79] (Hoeben CJ at CL and Price J agreeing at [1] and [2]): ‘It is one thing to discount admis…
R v Tuala [2015] NSWCCA 8
Citation 6 (Para 29)

…to submit that the victim impact statement grounds the finding of any factor of aggravation. Further, I note the effect of the decision of R v Tuala [2015] NSWCCA 8. The effect on the victim of the crime is taken into account by virtue of s 3A(g) of the Crimes (Sentencing Procedure) Act , 1999.…
Pym v R [2014] NSWCCA 182
Citation 7 (Para 116)

…e J agreed at [101]) in Devaney v R [2012] NSWCCA 285 at [88] (cited by Hamill J in Luque v R [2017] NSWCCA 226 at [116] and Fullerton J in Pym v R [2014] NSWCCA 182 at [79] (Hoeben CJ at CL and Price J agreeing at [1] and [2]): ‘It is one thing to discount admissible statements made to a psychiatrist or psychologis…
Bugmy v The Queen [2013] HCA 37
Citation 8 (Para 37)

…ence and his father’s alcoholism certainly entitles the offender to a finding that the principles enunciated by the High Court in Bugmy v the Queen [2013] HCA 37 are enlivened at least to some extent. This goes to reduce the moral culpability of the offender at least to some extent. As I observed in R v Hassenei…
Devaney v R [2012] NSWCCA 285
Citation 9 (Para 101)

…eports. In cases where a report is not challenged, the correct approach is as stated by Allsop P (with whom Price J agreed at [101]) in Devaney v R [2012] NSWCCA 285 at [88] (cited by Hamill J in Luque v R [2017] NSWCCA 226 at [116] and Fullerton J in Pym v R [2014] NSWCCA 182 at [79] (Hoeben CJ at CL and Price J ag…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 10 (Para 49)

…to counsel, I do not read anything in the report of Dr Calvin which would justify principles set out by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] being enlivened. If I am incorrect in that conclusion in the circumstances of this case noting the whole of the report those factors w…
Cheung v The Queen [2001] HCA 67
Citation 11 (Para 5)

…It is instructive to go to the decision of Cheung v The Queen [2001] HCA 67; 209 CLR 1; 76 ALJR 133; 185 ALR 111. At [14] in their joint judgment, Gleeson CJ, Gummow & Hayne JJ said:…
R v Olbrich [1999] HCA 54
Citation 12 (Para 4)

…all the contents of that document is agreed between the parties. Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 27 said:…
The Queen v Olbrich [1999] HCA 5418
Citation 13 (Para 4)

…. Mr Swaine of Counsel observes that not all the contents of that document is agreed between the parties. Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 27 said:…

Legislation Cited

Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v WIDDISON [2024] NSWDC 601
Hearing dates:	29 November 2024
Date of orders:	18 December 2024
Decision date:	18 December 2024
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see paragraphs [63]-[67]
Catchwords:	CRIME – sentencing – sexual intercourse without consent subsequent recording offender agreed victim had said no –– trial verdict of guilty on one court - offence occurred in the victim’s home - Bugmy factors
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	Bugmy v the Queen [2013] HCA 37 Cheung v The Queen [2001] HCA 67; 209 CLR 1; 76 ALJR 133; 185 ALR 111 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Lloyd v R [2022] NSWCCA 18 R v Hassenein Naderi [2022] NSWDC 534 R v McMahon [2021] NSWDC 437 R v Tuala [2015] NSWCCA 8 Stein v R [2023] NSWCCA 324 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Category:	Sentence
Parties:	Rex Corey WIDDISON
Representation:	Counsel: Ms L Hanshaw for the Crown Mr Swaine for the Offender Solicitors: Office of the Director of Public Prosecutions Mr D Smith, Walsh and Blair Lawyers
File Number(s):	2023/00084697
Publication restriction:	There is to be no publication of the name of the complainant or anything that might tend to identify them.