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R v Williams (a pseudonym) (No 2)

R v Williams (a pseudonym) (No 2)

Case [2021] NSWDC 12 11 February 2021

Criminal Liability

Sentencing

Aggravated Sexual Assault

Course of Conduct

Impact on Complainants

Grooming

Mitigating Factors

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Williams (a pseudonym) (No 2) [2021] NSWDC 12
Hearing dates: 17 December 2020
Decision date: 11 February 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 13 years 6 months with a non - parole period of 9 years.

Catchwords:
CRIME – Sexual Assault & commit act of indecency - sexual intercourse with person 10 or over & under 16 - aggravated sex assault victim under the age of 16 years- three complainants
SENTENCING — Relevant factors on sentence — three complainant’s – course of conduct- period were he did not offend- offences against younger brother- offences against female children - exploitation of relationships between offender and child complainants - grooming – sexual assault after assuming parental responsibilities - ill-health can mitigate punishment – unsworn statements to psychologist carry little weight- opinion of professional psychologist still of value- stale crimes but no progress toward rehabilitation - principle of totality- impact on complainants - victim vindication.

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Attorney General’s Application No. 1 (2002) 56 NSWLR 146
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
DPP (C’th) v Beattie [2017] NSWCCA 301
Hili v The Queen (2010) 242 CLR 520
Kristensen v R [2018] NSWCCA 189
Magnuson v R [2013] NSWCCA
MAKv R [2006] NSWCCA 381
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Markarian v The Queen (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
MPB v R [2013] NSWCCA 213
Muldrock v The Queen (2011) 244 CLR 120
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Burrell (2000) 114 A Crim R 207
R v Cattell [2019] NSWCCA 297
R v Clinch (1994) 72 A Crim R 301 at 306
R v L, unreported, NSWCCA, 17/6/96
R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v MJR (2002) 54 NSWLR 368
RvTodd [1982] 2 NSWLR 517
R v Williams(a pseudonym) [2020] NSWDC 836
Rios v R [2012] NSWCCA 8
RL v R [2018] NSWCCA 274
Ruanov R [2011] NSWCCA 149
Smithv R (1987) 44 SASR 587
Thompson v R (2000) 49 NSWLR 383
Weininger v The Queen (2003) 212 CLR 629

Texts Cited:
Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Impacts, Volume 3, pages 9 - 11.

Category: Sentence
Parties: Scott Williams (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr Z Khan (for the offender)
Ms N Keay, Crown Prosecutor
Solicitors:
Legal Aid NSW (for the offender)

File Number(s): 2018/88052; 2018/311339; 2018/287604;
Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900 there is to be no publication of a complainant’s name or anything that may…

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 Williams (a pseudonym) (No 2)

Details

AGLC: R v Williams (a pseudonym) (No 2) [2021] NSWDC 12
Case: [2021] NSWDC 12
Decision Date: 11 February 2021

CaseChat Overview and Summary

In the case of R v Williams, the respondent stood accused of multiple instances of aggravated sexual assault against three complainants, all of whom were under the age of 16 at the time of the offences. The case was heard in a higher court of criminal jurisdiction. The respondent pleaded guilty to several charges, including sexual intercourse with a person aged between 10 and 16, and aggravated sexual assault against a victim under 16. The court was tasked with determining an appropriate sentence, taking into account the nature and circumstances of the offences, as well as relevant mitigating and aggravating factors.

The legal issues before the court included the appropriate weight to be given to the respondent's unsworn statements to a psychologist, the impact of the respondent's ill health on the sentence, and the value of the professional psychologist's opinion. Additionally, the court had to consider the exploitation of relationships, the grooming of the victims, and the principle of totality in sentencing, which requires that the totality of the sentence should reflect the totality of the offending behaviour. The court also had to weigh the impact on the complainants and the need for victim vindication.

In delivering its decision, the court held that the unsworn statements to the psychologist carried little weight, but the opinion of the professional psychologist was still of significant value. The court found that the respondent's ill health could mitigate the punishment but noted that there had been no progress towards rehabilitation. The court emphasised the importance of considering the impact on the complainants and the need for victim vindication. Applying the principle of totality, the court determined that an aggregate sentence of 13 years and 6 months, with a non-parole period of 9 years, was appropriate.

The court ordered that the respondent be sentenced to an aggregate term of imprisonment of 13 years and 6 months, with a non-parole period of 9 years. This sentence reflects the seriousness of the offences, the impact on the complainants, and the need for victim vindication, while also taking into account the relevant mitigating and aggravating factors.

Orders

Orders of the court

Aggregate sentence of 13 years 6 months with a non - parole period of 9 years.

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

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Williams (a pseudonym) (No 2) [2021] NSWDC 12

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 21 of 21 shown

R v Williams (a pseudonym)
[2020] NSWDC 836 Para 2

…The defence application to separate the trials of each complainant is refused: see R v Williams (a pseudonym) [2020] NSWDC 836.…
R v Cattell
[2019] NSWCCA 297 Para 62

…decades and has enjoyed a life free from opprobrium or punishment for his crimes during that time: Magnuson v R [2013] NSWCCA 50 at [62]: R v Cattell [2019] NSWCCA 297.…
RL v R
[2018] NSWCCA 274 Para 49

…ges. Meeting requirements for percentage ratios, whilst observing other principles of sentence, is not necessarily a straightforward task: RL v R [2018] NSWCCA 274 at [62]. Here I have rounded down. I do not believe the s25D requires sentences be expressed in weeks or days. Sentencing is not meant to be a mechanical…
Kristensen v R
[2018] NSWCCA 189 Para 49

…in weeks or days was to be “discouraged:” Ruano v R [2011] NSWCCA 149 at [20]; and see Rios v R [2012] NSWCCA 8 at [42]-[43]; Kristensen v R [2018] NSWCCA 189 at [42].…
Director of Public Prosecutions (Cth) v Beattie
[2017] NSWCCA 301 Para 72

…umber of lengthy periods of imprisonment does not result in a disproportionate level of punishment. As Basten JA points out in DPP (C’th) v Beattie [2017] NSWCCA 301 at [26]-[45], what is a proportionate sentence or what might be seen as a “crushing” sentence can depend on the perspective of the observer; whether th…
Munda v Western Australia
[2013] HCA 38 Para 74

…such protection as can be afforded by the state to the vulnerable against repetition of such offending: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38.…
Bugmy v The Queen
[2013] HCA 37 Para 55

…intermittently. His dysfunctional family background is a relevant matter on sentence that must be given some weight: see Bugmy v The Queen [2013] HCA 37; 249 CLR 571…
MPB v R
[2013] NSWCCA 213 Para 27

…The correct approach to the fixing of the sentence involves steps set out in MPB v R [2013] NSWCCA 213 at [34] & 35…
Abbas, Bodiotis, Taleb and Amoun v R
[2013] NSWCCA 115 Para 48

…oach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357 [at [51]-[54]; see also Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, per Bathurst CJ at [22].…
Magnuson v R
[2013] NSWCCA 50 Para 62

…n. To date he has escaped justice for decades and has enjoyed a life free from opprobrium or punishment for his crimes during that time: Magnuson v R [2013] NSWCCA 50 at [62]: R v Cattell [2019] NSWCCA 297.…
Rios v R
[2012] NSWCCA 8 Para 49

…Appeal has said that specification of a term in weeks or days was to be “discouraged:” Ruano v R [2011] NSWCCA 149 at [20]; and see Rios v R [2012] NSWCCA 8 at [42]-[43]; Kristensen v R [2018] NSWCCA 189 at [42].…
Muldrock v The Queen
[2011] HCA 39 Para 22

…ective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27].…
Ruano v R
[2011] NSWCCA 149 Para 49

…ay 2018 approach where the Court of Criminal Appeal has said that specification of a term in weeks or days was to be “discouraged:” Ruano v R [2011] NSWCCA 149 at [20]; and see Rios v R [2012] NSWCCA 8 at [42]-[43]; Kristensen v R [2018] NSWCCA 189 at [42].…
Hili v The Queen
[2010] HCA 45 Para 23

…o what is the appropriate sentence given all the factors relevant to offending behaviour and the offender: Muldrock; Markarian ; Hili v The Queen (2010) 242 CLR 520…
R v MAK
[2006] NSWCCA 381 Para 69

…ing courts avoid any suggestion of a discount for multiple offending. This is particularly so where the offences are discrete and separate: R v MAK [2006] NSWCCA 381 at [18].…
Markarian v The Queen
[2005] HCA 25 Para 21

…is not appropriate just to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: Markarian v The Queen (2005) 228 CLR 357, at [30] and [31].…
Weininger v The Queen
[2003] HCA 14 Para 23

…y of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money”: Weininger v The Queen (2003) 212 CLR 629. Ultimately, I must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is t…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 48

…he increases operate to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1 (2002) 56 NSWLR 146 at [39] – [42]. I do not impose a separate penalty for the Form 1 offences. Rather, in determining the appropriate penalty for the offence for which th…
R v MJK
[2001] NSWCCA 325 Para 25

…the long-term psychological consequences for the victims and a considered judicial response to changing community attitudes to these crimes: R v MJR (2002) 54 NSWLR 368 at [57].…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 50

…or crimes involving children - there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence: Thompson v R (2000) 49 NSWLR 383 at [3].…
Mill v The Queen
[1988] HCA 70 Para 69

…ce and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender’s crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63. There must be some accumulation of penalty. Public confidence in the administration of justice requires sentencing courts avoid any suggestio…

Legislation cited in this decision · 5

Crimes (Sentencing Procedure) Act 1999 (NSW)
2 mentions (from Para 24)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 60)
Crimes (High Risk Offenders) Act 2006 (NSW)
1 mention (from Para 78)
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v Williams (a pseudonym) (No 2) [2021] NSWDC 12
Hearing dates:	17 December 2020
Decision date:	11 February 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 13 years 6 months with a non - parole period of 9 years.
Catchwords:	CRIME – Sexual Assault & commit act of indecency - sexual intercourse with person 10 or over & under 16 - aggravated sex assault victim under the age of 16 years- three complainants SENTENCING — Relevant factors on sentence — three complainant’s – course of conduct- period were he did not offend- offences against younger brother- offences against female children - exploitation of relationships between offender and child complainants - grooming – sexual assault after assuming parental responsibilities - ill-health can mitigate punishment – unsworn statements to psychologist carry little weight- opinion of professional psychologist still of value- stale crimes but no progress toward rehabilitation - principle of totality- impact on complainants - victim vindication.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General’s Application No. 1 (2002) 56 NSWLR 146 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 DPP (C’th) v Beattie [2017] NSWCCA 301 Hili v The Queen (2010) 242 CLR 520 Kristensen v R [2018] NSWCCA 189 Magnuson v R [2013] NSWCCA MAKv R [2006] NSWCCA 381 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 MPB v R [2013] NSWCCA 213 Muldrock v The Queen (2011) 244 CLR 120 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Burrell (2000) 114 A Crim R 207 R v Cattell [2019] NSWCCA 297 R v Clinch (1994) 72 A Crim R 301 at 306 R v L, unreported, NSWCCA, 17/6/96 R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v MJR (2002) 54 NSWLR 368 RvTodd [1982] 2 NSWLR 517 R v Williams(a pseudonym) [2020] NSWDC 836 Rios v R [2012] NSWCCA 8 RL v R [2018] NSWCCA 274 Ruanov R [2011] NSWCCA 149 Smithv R (1987) 44 SASR 587 Thompson v R (2000) 49 NSWLR 383 Weininger v The Queen (2003) 212 CLR 629
Texts Cited:	Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Impacts, Volume 3, pages 9 - 11.
Category:	Sentence
Parties:	Scott Williams (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr Z Khan (for the offender) Ms N Keay, Crown Prosecutor Solicitors: Legal Aid NSW (for the offender)
File Number(s):	2018/88052; 2018/311339; 2018/287604;
Publication restriction:	Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900 there is to be no publication of a complainant’s name or anything that may…