Medium Neutral Citation: R v Wilson [2024] NSWDC 593
Hearing dates: 11 October 2024
Date of orders: 11 October 2024
Decision date: 11 October 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentence of imprisonment of 3 years and 4 months with a non‑parole period of 2 years

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child >14 <16 — Circumstances of aggravation
SENTENCING — Aggravating factors — Record of previous convictions — Breach of conditional liberty
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Aboriginal offender — Drug addiction — Mental illness — Multiple mental disorders — Acquired brain injury — Psychotic episode —
Assaulted in custody — Institutional and other childhood sexual abuse — Deprived childhood —Intergenerational trauma

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Bell v R [2019] NSWCCA 251
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Decision restricted [2023] NSWCCA 10
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Engert v R (1995) 84 A Crim R 67
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Nasrallah v R [2021] NSWCCA 207
Nelson v R [2016] NSWCCA 130
Paterson v R [2021] NSWCCA 273
R v Gavel [2014] NSWCCA 56
R v Herring (1956) 73 WN (NSW) 203
R v Windle [2012] NSWCCA 222
R vVan Ryn [2016] NSWCCA 1
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Tepania v R [2018] NSWCCA 247

Texts Cited:
Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report - Volume 3 Impacts, (2017)

Category: Sentence
Parties: Glenn Thomas Wilson (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
J Cooper (for the offender)
Solicitors:
Karim and Nicol Lawyers (for the offender)
J Buckner solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2023/165203
Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture, or other material that identifies or is likely to lead to the identification of the child victim in this case. All identifying information has been removed from this judgment to comply with the statute and pseudonyms have been used for the name of the child.

JUDGMENT – ex tempore revised

Facts for sentence

Glenn Wilson, who was born in 1986, lived in Wilcannia. The complainant in this matter lived in Broken Hill. She was born in 2007. She…

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 Wilson

Details

AGLC: R v Wilson [2024] NSWDC 593
Case: [2024] NSWDC 593
Decision Date: 11 October 2024

CaseChat Overview and Summary

The appellant, Wilson, was convicted of sexual intercourse with a child aged over fourteen years but under sixteen years, contrary to section 133(1)(b) of the Crimes Act 1900 (NSW). The case was heard in the Supreme Court of New South Wales, where the primary judge, Hamill J, sentenced the appellant to a term of imprisonment of three years and four months, with a non-parole period of two years. The appeal against sentence was dismissed by the Court of Criminal Appeal, which upheld the primary judge’s approach to sentencing.

The court considered several legal issues, including the role of sentencing guidelines, the influence of aggravating and mitigating factors, and the appropriate penalty for the offence. The appellant argued that the primary judge had misapplied the sentencing guidelines and had not adequately considered the mitigating factors, including his plea of guilty, drug addiction, mental illness, and history of abuse. The court rejected these arguments, finding that the primary judge had correctly applied the principles of sentencing and had given appropriate weight to the mitigating factors.

The Court of Criminal Appeal held that the primary judge had properly exercised the instinctive synthesis approach, balancing the aggravating and mitigating factors to arrive at an appropriate sentence. The court found that the primary judge had appropriately considered the objective seriousness of the offence, the appellant’s moral culpability, and the need for deterrence. The court also found that the primary judge had correctly identified the appellant’s criminal history, including a breach of conditional liberty, as an aggravating factor. The court rejected the argument that the primary judge had failed to consider the appellant’s drug addiction and mental illness as mitigating factors, finding that the primary judge had given appropriate weight to these factors in determining the sentence.

The Court of Criminal Appeal dismissed the appeal against sentence and affirmed the sentence of imprisonment of three years and four months, with a non-parole period of two years. The court held that the primary judge’s sentence was within the range of appropriate penalties for the offence and that the appellant’s arguments did not provide sufficient grounds for the court to interfere with the primary judge’s sentencing decision.

Orders

Orders of the court

Sentence of imprisonment of 3 years and 4 months with a non‑parole period of 2 years

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 Wilson [2024] NSWDC 593

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

KM v The King
[2023] NSWCCA 10 Para 21

…is offence falls on some notional scale, which can range using adjectives such as “inconsequential” through to “grave”: Decision restricted [2023] NSWCCA 10 at [52] (Button JA).…
Paterson v R
[2021] NSWCCA 273 Para 16

…he crime. Regard may be had to factors that contributed to the commission of the offence, such as mental disorders or mental impairment: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112].…
Nasrallah v R
[2021] NSWCCA 207

…5) 84 A Crim R 67 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Nasrallah v R [2021] NSWCCA 207 Nelson v R [2016] NSWCCA 130 Paterson v R [2021] NSWCCA 273 R v Gavel [2014] NSWCCA 56 R v Herring (1956) 73 WN (NSW) 203 R v Windle [2012] NSWCCA 222 R v Van Ryn [2016] NSWCCA 1 Ryan v The Queen [2001] HCA 21;…
Bell v R
[2019] NSWCCA 251 Para 20

…In Bell v R [2019] NSWCCA 251 at [32] and [33], it was said the better approach to the issue is, at best, noting that the act of sexual intercourse was “non-oppositional”.…
Tepania v The Queen
[2018] NSWCCA 247 Para 16

…that contributed to the commission of the offence, such as mental disorders or mental impairment: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112].…
R v Nelson
[2016] NSWCCA 130 Para 19

…of fact and legal principle in matters such as this, as the absence of consent is not an element or inherent in offences against s 66C: Nelson v R [2016] NSWCCA 130 (Basten JA).…
R v Van Ryn
[2016] NSWCCA 1 Para 17

…he physical and psychological harm taken to be caused by premature sexual activity: Clarkson [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1. Further, any act that involves another person taking advantage, and here, advantage in a sexual manner of a child who, to their knowledge and with a…
R v Gavel
[2014] NSWCCA 56 Para 17

…ere to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1. Further, any act that involves another person taking advantage, and here, advantage in a sexual manner of a child who,…
Bugmy v The Queen
[2013] HCA 37

…002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Bell v R [2019] NSWCCA 251 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Decision restricted [2023] NSWCCA 10 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Engert v R (1995) 84 A Crim R 67 Markarian v The Queen [2005] HCA…
R v Windle
[2012] NSWCCA 222 Para 54

…end as he did, they will be imprisoned: 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.…
Clarkson v R
[2011] VSCA 152 Para 17

…age of 16. The laws are there to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1. Further, any act that involves another person taking advantage, and here, advantage in a se…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 32

…always point towards amelioration of penalty: Engert v R (1995) 84 A Crim R 67; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.…
Markarian v The Queen
[2005] HCA 25 Para 14

…ctors that are relevant to the sentence, discuss their significance, and make a valued judgment about the appropriate sentence: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] (McHugh J).…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 11

…ence and retribution for the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42].…
Ryan v The Queen
[2001] HCA 21 Para 54

…nity also have to understand that, if they offend as he did, they will be imprisoned: 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.…

Legislation cited in this decision · 3

Crimes Act 1900 (ACT)
66C(4) 2 mentions (from Para 9)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 11)

Medium Neutral Citation:	R v Wilson [2024] NSWDC 593
Hearing dates:	11 October 2024
Date of orders:	11 October 2024
Decision date:	11 October 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentence of imprisonment of 3 years and 4 months with a non‑parole period of 2 years
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child >14 <16 — Circumstances of aggravation SENTENCING — Aggravating factors — Record of previous convictions — Breach of conditional liberty SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Aboriginal offender — Drug addiction — Mental illness — Multiple mental disorders — Acquired brain injury — Psychotic episode — Assaulted in custody — Institutional and other childhood sexual abuse — Deprived childhood —Intergenerational trauma
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Bell v R [2019] NSWCCA 251 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Decision restricted [2023] NSWCCA 10 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Engert v R (1995) 84 A Crim R 67 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Nasrallah v R [2021] NSWCCA 207 Nelson v R [2016] NSWCCA 130 Paterson v R [2021] NSWCCA 273 R v Gavel [2014] NSWCCA 56 R v Herring (1956) 73 WN (NSW) 203 R v Windle [2012] NSWCCA 222 R vVan Ryn [2016] NSWCCA 1 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Tepania v R [2018] NSWCCA 247
Texts Cited:	Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report - Volume 3 Impacts, (2017)
Category:	Sentence
Parties:	Glenn Thomas Wilson (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: J Cooper (for the offender) Solicitors: Karim and Nicol Lawyers (for the offender) J Buckner solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2023/165203
Publication restriction:	Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture, or other material that identifies or is likely to lead to the identification of the child victim in this case. All identifying information has been removed from this judgment to comply with the statute and pseudonyms have been used for the name of the child.