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R v Wilkie

R v Wilkie

Case [2025] NSWDC 299 28 May 2025

Objective seriousness

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Wilkie [2025] NSWDC 299
Hearing dates: 28 May 2025
Date of orders: 28 May 2025
Decision date: 28 May 2025
Jurisdiction: Criminal
Before: Haesler SC
Decision:
Sentence of imprisonment of 4 years and 1 month with a non-parole period of 2 years 1 month

Catchwords:
CRIME — Violent offences — Assault causing death
SENTENCING — Mitigating factors — Plea of guilty — Remorse — Mental disorders — Childhood trauma and neglect — Sexual abuse in Juvenile Detention — Sole parental custody of child —Hardship to child — Unlikely to re-offend
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness — Hardship to third parties
SENTENCING — Sentencing procedure — Fact finding from CCTV — Instinctive synthesis

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

Cases Cited:
Barbaro v The Queen (2014) 253 CLR 58
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42
Hili v The Queen (2010) 242 CLR 520
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
R v Edwards (1996) 90 A Crim 510
R v Geddes (1936) 36 SR (NSW) 554
R v Herring (1956) 73 WN (NSW) 203
R v Liu [2005] NSWCCA 378
R v McKeown [2013] NSWDC 22
R v Mihai [2020] NSWDC 727
R v Windle [2012] NSWCCA 222
R v Zerafa [2012] NSWSC 978
Ryanv The Queen [2001] HCA 21; (2001) 206 CLR 267
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
Totaan v R [2022] NSWCCA 75
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:
A Symonds, “Children of prisoners” (2009) 21(3) Judicial Officers Bulletin 24
Commonwealth of Australia, Australian Human Rights Commission, Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997)
Commonwealth of Australia, Australian Law Reform Commission, Report 103 Same Crime, Same Time: Sentencing of Federal Offenders, (April 2006) at 6.124
Parliament of Victoria, Legislative Council: Legal and Social Issues Committee, Inquiry into Children Affected by Parental Incarceration (August 2022)
V Edwidge and P Gray, “Significance of Culture to Wellbeing, Healing and Rehabilitation” (2021) The Bugmy Bar Book Project 50

Category: Sentence
Parties: Rhys Wayne Wilkie aka Olbrich (the offender)
Director Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
D Bhutani (for the offender)
Solicitors:
J Loosley for the Director Public Prosecutions (NSW) (Crown)

File Number(s): 2024/139976

JUDGMENT – ex tempore revised

Introduction

One of the historical functions of our criminal law has been to discourage members of the community, including people who perceive an injustice, or perceive someone being hurt from resorting…

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 Wilkie

Details

AGLC: R v Wilkie [2025] NSWDC 299
Case: [2025] NSWDC 299
Decision Date: 28 May 2025

CaseChat Overview and Summary

The case of R v Wilkie involved the defendant, Wilkie, who was charged with assault causing death. The incident took place in a public place, and the victim succumbed to injuries inflicted by Wilkie. The matter was heard in the higher court, where the sentencing following a guilty plea was the central issue. The court was tasked with determining the appropriate penalty, taking into account various mitigating factors such as Wilkie's early life circumstances, his plea of guilty, and his demonstrated remorse. Additionally, the court needed to weigh the severity of the offence, the deterrence value of the sentence, and the potential impact on third parties.

Wilkie's background included severe childhood trauma and neglect, including sexual abuse while in juvenile detention, and he had been raised in sole parental custody. These factors, alongside his mental health conditions, were presented as mitigating circumstances. The court acknowledged these aspects, alongside Wilkie's plea of guilty and his evident remorse, as significant in the sentencing process. The objective seriousness of the offence, however, necessitated a custodial sentence to fulfil the objectives of general and specific deterrence. The court also considered the potential hardship to Wilkie's child and the low likelihood of reoffending in arriving at a balanced sentence.

In delivering its decision, the court found that a sentence of imprisonment was necessary, reflecting the gravity of the offence and the need for deterrence. The court imposed a sentence of 4 years and 1 month, with a non-parole period of 2 years and 1 month. This decision balanced the need to protect the community and deter future offences with the mitigating factors presented by Wilkie. The court also took into account the hardship that a custodial sentence would impose on Wilkie's child, as well as his prospects for rehabilitation and the low risk of reoffending. The outcome demonstrates the court's consideration of both the seriousness of the crime and the personal circumstances of the offender in crafting a just and proportionate sentence.

Orders

Orders of the court

Sentence of imprisonment of 4 years and 1 month with a non-parole period of 2 years 1 month

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

AGLC Citation

R v Wilkie [2025] NSWDC 299

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 16 of 16 shown

Totaan v The the Queen
[2022] NSWCCA 75 Para 46

…ortant more recent decisions and other important considerations: R v Zerafa [2012] NSWSC 978; DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42; Totaan v R [2022] NSWCCA 75. If a sole parent is gaoled it is inevitable there will be a significant disruption to the life of the child. There are risks to children because dis…
R v Mihai
[2020] NSWDC 727 Para 57

…was part of the defence submissions: MFI 2. Thankfully there are not many s 25A cases. I have read Judge Sutherland’s useful summaries in R v Mihai [2020] NSWDC 727. But there are too few s 25A cases for any pattern to be discerned. The manslaughter authorities were not of much assistance because the offence of man…
Director of Public Prosecutions (Cth) v Pratten (No 2)
[2017] NSWCCA 42 Para 46

…revisited in the light of important more recent decisions and other important considerations: R v Zerafa [2012] NSWSC 978; DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42; Totaan v R [2022] NSWCCA 75. If a sole parent is gaoled it is inevitable there will be a significant disruption to the life of the child. There are…
R v Pham
[2015] HCA 39 Para 57

…er is individual. Sentencing involves the discretionary judgment; the mix of factors a judge has to weigh in each case varies: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74].…
Barbaro v The Queen
[2014] HCA 2 Para 57

…weigh in each case varies: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74].…
Munda v Western Australia
[2013] HCA 38 Para 1

…eing hurt from resorting to self-help, violence and the consequent escalation of violence between members of the community: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [58].…
Bugmy v The Queen
[2013] HCA 37 Para 42

…and experienced in juvenile detention, and his mental health issues, require I consider and apply the legal principles espoused in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, to some extent.…
R v McKeown
[2013] NSWDC 22 Para 60

…ved one. And a life should never be measured by the punishment meted out to the offender, that would be to do an injustice to Mr Andrews: R v McKeown [2013] NSWDC 22 at [5].…
R v Windle
[2012] NSWCCA 222 Para 59

…pon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. But as I said earlier, no one factor should be the starting point of any sentence. While deterrence is an important factor that must be considered, it…
R v Agius; R v Zerafa
[2012] NSWSC 978 Para 46

…It is time the Edwards principle was revisited in the light of important more recent decisions and other important considerations: R v Zerafa [2012] NSWSC 978; DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42; Totaan v R [2022] NSWCCA 75. If a sole parent is gaoled it is inevitable there will be a significant disruption…
Hili v The Queen
[2010] HCA 45 Para 57

…ment; the mix of factors a judge has to weigh in each case varies: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74].…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 42

…principles espoused in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, to some extent.…
R v Liu
[2005] NSWCCA 378 Para 45

…ong negative impacts, as they did on this offender. I was asked to apply similar considerations to those explained by McClellan CJ at CL in R v Liu [2005] NSWCCA 378 at [28].…
Markarian v The Queen
[2005] HCA 25 Para 3

…e the other many purposes and reasons for a sentencing judgment. To do so, he said, could “distort” the sentencing process: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]. But a judge must put some focus on what occurred and the consequences of what occurred. Where mitigating circumstances arise…
Ryan v The Queen
[2001] HCA 21 Para 59

…ngdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. But as I said earlier, no one factor should be the starting point of any sentence. While deterrence…
Veen v The Queen (No 2)
[1988] HCA 14 Para 33

…erration, but it is important to note that there is no offending for the past, almost, ten years. It was not submitted that Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 applies. Care needs to be taken in considering s 21A(2) Crimes (Sentencing Procedure) Act 1999 (NSW). I try not to put labels on ma…

Legislation cited in this decision · 2

Crimes Act 1900 (ACT)
25A 2 mentions (from Para 4)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 33)

Medium Neutral Citation:	R v Wilkie [2025] NSWDC 299
Hearing dates:	28 May 2025
Date of orders:	28 May 2025
Decision date:	28 May 2025
Jurisdiction:	Criminal
Before:	Haesler SC
Decision:	Sentence of imprisonment of 4 years and 1 month with a non-parole period of 2 years 1 month
Catchwords:	CRIME — Violent offences — Assault causing death SENTENCING — Mitigating factors — Plea of guilty — Remorse — Mental disorders — Childhood trauma and neglect — Sexual abuse in Juvenile Detention — Sole parental custody of child —Hardship to child — Unlikely to re-offend SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness — Hardship to third parties SENTENCING — Sentencing procedure — Fact finding from CCTV — Instinctive synthesis
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Barbaro v The Queen (2014) 253 CLR 58 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42 Hili v The Queen (2010) 242 CLR 520 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 R v Edwards (1996) 90 A Crim 510 R v Geddes (1936) 36 SR (NSW) 554 R v Herring (1956) 73 WN (NSW) 203 R v Liu [2005] NSWCCA 378 R v McKeown [2013] NSWDC 22 R v Mihai [2020] NSWDC 727 R v Windle [2012] NSWCCA 222 R v Zerafa [2012] NSWSC 978 Ryanv The Queen [2001] HCA 21; (2001) 206 CLR 267 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Totaan v R [2022] NSWCCA 75 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	A Symonds, “Children of prisoners” (2009) 21(3) Judicial Officers Bulletin 24 Commonwealth of Australia, Australian Human Rights Commission, Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997) Commonwealth of Australia, Australian Law Reform Commission, Report 103 Same Crime, Same Time: Sentencing of Federal Offenders, (April 2006) at 6.124 Parliament of Victoria, Legislative Council: Legal and Social Issues Committee, Inquiry into Children Affected by Parental Incarceration (August 2022) V Edwidge and P Gray, “Significance of Culture to Wellbeing, Healing and Rehabilitation” (2021) The Bugmy Bar Book Project 50
Category:	Sentence
Parties:	Rhys Wayne Wilkie aka Olbrich (the offender) Director Public Prosecutions (NSW) (Crown)
Representation:	Counsel: D Bhutani (for the offender) Solicitors: J Loosley for the Director Public Prosecutions (NSW) (Crown)
File Number(s):	2024/139976