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R v Wilson (a pseudonym)

R v Wilson (a pseudonym)

Case [2023] NSWDC 354 21 April 2023

Criminal Liability

Aggravated Sexual Assault

Abuse of Position of Trust

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District Court

New South Wales

Medium Neutral Citation: R v Wilson (a pseudonym) [2023] NSWDC 354
Hearing dates: 21 April 2023
Date of orders: 21 April 2023
Decision date: 21 April 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence – imprisonment for 9 years with a non‑parole period of 5 years and 9 months

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child <10
CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years — Victim under authority
CRIMINAL PROCEDURE — Trial — Jury — Sexual offence proceedings
SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victim — Victim impact statement
SENTENCING — Non-parole period — Standard non-parole period
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences — Objective seriousness
SENTENCING — Subjective considerations on sentence — Health issues — Special circumstances

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

Cases Cited:
BT v R [2010] NSWCCA 267
Clarkson v R [2011] VSCA 152
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Dungay v R [2020] NSWCCA 209
Hili v The Queen ((2010) 242 CLR 520; [2010] HCA 45
JJ v R [2020] NSWCCA 165
LB v R [2019] NSWCCA 151
MAK v R [2006] NSWCCA 381
Mill v The Queen (1988) 166 CLR 59; [1998] HCA 70
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
R v AJP [2004] NSWCCA 434
R v Clinch (1994) 72 A Crim R 301
R v DN [2023] NSWCCA 39
R v Gavel [2014] NSWCCA 56
R v NJK [2011] NSWCCA 151
R v Simpson; 53 NSWLR 704; [2001] NSWCCA 534
Stanton v R [2021] NSWCCA 123
The Queen v Pham; (2015) 256 CLR 550; [2015] HCA 39

Texts Cited:
Commonwealth of Australia, Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report, (2017) vol 3

Category: Sentence
Parties: Douglas Wilson (the offender)
Director of Public Prosecutions (the Crown)
Representation:
Counsel:
S Fraser (for the offender)
Solicitors:
A Hughes (for the Director of Public Prosecutions)
McAnaney Lawyers (for the offender)

File Number(s): 2022/62062
Publication restriction: The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s 578A Crimes Act 1900 (NSW) and s 15A Children (Criminal Proceedings) Act 1987 (NSW). Identifying information has been removed from this version of the judgment to comply with the statute. A pseudonym has been used for the name of the offender and complainant in this published judgment.

JUDGMENT

Introduction

Harriett was born in March 2008. She has an older brother. Her parents separated but she would spend every second weekend and half the school holidays with her father. She also spoke to him regularly on the telephone.
In about 2013, her father commenced a new relationship. He lived with his new…

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 (a pseudonym)

Details

AGLC: R v Wilson (a pseudonym) [2023] NSWDC 354
Case: [2023] NSWDC 354
Decision Date: 21 April 2023

CaseChat Overview and Summary

The case of R v Wilson involved a dispute concerning severe child sex offences, including sexual intercourse with a child and aggravated sexual assault. The matter was heard in the Supreme Court of New South Wales, where the defendant faced serious allegations. The defendant was accused of abusing his position of trust to commit multiple sexual offences against a child. The case required the court to address several legal issues, including the appropriate application of sentencing principles to the facts and the determination of an appropriate non-parole period. The court also had to consider the impact of the defendant's health issues and special circumstances on the sentencing process.

The court needed to determine whether the defendant's health issues and special circumstances warranted a reduction in the standard non-parole period. Additionally, the court had to consider the objective seriousness of the offences and the need for an aggregate sentence. The court needed to balance the aggravating factors, such as the abuse of a position of trust, with the defendant's health issues and special circumstances. The court also had to take into account the victim impact statement, which highlighted the profound impact of the offences on the victim.

In delivering the judgment, the court emphasised the gravity of the offences committed by the defendant, noting the severe breach of trust and the lasting impact on the victim. The court acknowledged the defendant's health issues and special circumstances but found that these factors did not sufficiently warrant a departure from the standard non-parole period. The court determined that an aggregate sentence was appropriate due to the multiple offences and their cumulative impact. Ultimately, the court sentenced the defendant to imprisonment for a total of nine years, with a non-parole period of five years and nine months. This sentence reflected the court's consideration of the aggravating factors, the objective seriousness of the offences, and the need to protect the community.

Orders

Orders of the court

Aggregate sentence – imprisonment for 9 years with a non‑parole period of 5 years and 9 months

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

Full text does not contain this section.

Citations

AGLC Citation

R v Wilson (a pseudonym) [2023] NSWDC 354

Most Recent Citation

R v AB [2024] NSWDC 156

Cases citing this decision · 2 of 2 shown

R v SD
[2025] NSWDC 174 Para 39

…tandable gauge of seriousness than a label attempting to fix the matter on some notional range: R v RE [2023] NSWCCA 184 and R v Wilson (a pseudonym) [2023] NSWDC 354 at [21].…
R v AB
[2024] NSWDC 156 Para 17

…ke an approach guided by those observations in the cases of Ragg and RE and consistent with that taken by Haesler SC, DCJ in R v Wilson (a pseudonym) [2023] NSWDC 354. In accepting the submissions of the parties as to the relative objective seriousness of the offences, his Honour said, at [21]: “the relevant factor…

View all 2 citing cases →

Cases cited in this decision · 19 of 19 shown

Director of Public Prosecutions (NSW) v TH
[2023] NSWCCA 81 Para 47

…to statistics provided and the guidance offered by the Court of Criminal Appeal in recent cases including Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 and R v DN [2023] NSWCCA 39. Many of the crimes that were reviewed in those cases involved physical aggression, threats. Very significant custodial s…
R v DN
[2023] NSWCCA 39 Para 47

…the guidance offered by the Court of Criminal Appeal in recent cases including Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 and R v DN [2023] NSWCCA 39. Many of the crimes that were reviewed in those cases involved physical aggression, threats. Very significant custodial sentences were generally impo…
Stanton v R
[2021] NSWCCA 123 Para 15

…ole lives: Commonwealth of Australia, Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report , (2017) vol 3; Stanton v R [2021] NSWCCA 123.…
Dungay v R
[2020] NSWCCA 209 Para 30

…e Court with a criminal record. The material before me contained an inadmissible record from the Children's Court. I have no regard to it: Dungay v R [2020] NSWCCA 209; s 15 Children (Criminal Proceedings) Act 1987 (NSW).…
JJ v R
[2020] NSWCCA 165 Para 48

…nciples relating to general and specific deterrence. Particularly, if they are committed by persons in a petition of trust and / or authority: JJ v R [2020] NSWCCA 165.…
LB v R
[2019] NSWCCA 151 Para 28

…ct , now repealed, has a standard non‑parole period that has been described as “absurd”, or “curious”: BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151.…
R v Pham
[2015] HCA 39 Para 49

…n determining the appropriate sentence will never be precisely the same as in the past case, or cases: The Queen v Pham ; (2015) 256 CLR 550 at [47]; [2015] HCA 39; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45.…
R v Gavel
[2014] NSWCCA 56 Para 16

…long‑term and serious physical and psychological harm taken to be caused by the premature sexual activity: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56. The guidance offered by the maximum penalties makes that clear.…
R v NJK
[2011] NSWCCA 151 Para 29

…ted, “Nevertheless, an 8-year standard non‑parole period has been prescribed by the legislature and the courts must give effect to it”: R v NJK [2011] NSWCCA 151 at [40].…
Clarkson v R
[2011] VSCA 152 Para 16

…ildren from the potentially long‑term and serious physical and psychological harm taken to be caused by the premature sexual activity: Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56. The guidance offered by the maximum penalties makes that clear.…
Hili v The Queen
[2010] HCA 45

…Medium Neutral Citation: R v Wilson (a pseudonym) [2023] NSWDC 354 Hearing dates: 21 April 2023 Date of orders: 21 April 2023 Decision date: 21 April 2023 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence – imprisonment for 9 years with a non‑parole period of 5 years and 9 m…
BT v R
[2010] NSWCCA 267 Para 28

…ote that s 61N(2) Crimes Act , now repealed, has a standard non‑parole period that has been described as “absurd”, or “curious”: BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 45

…A submission was made that I apply the principles set out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. The material before me does not allow for Wilson to be placed strictly within any of the categories set out. But that does not mean that I do not take into ac…
R v MAK
[2006] NSWCCA 381 Para 52

…2 years will have a greater impact than 1 so far as impunity of effects is concerned: R v Clinch (1994) 72 A Crim R 301 at [306], approved in MAK v R [2006] NSWCCA 381.…
R v AJP
[2004] NSWCCA 434 Para 4

…ture and extent of any penetration of the child, if any. Noting that there is no hierarchy of seriousness of the kinds of sexual intercourse: R v AJP [2004] NSWCCA 434;…
R v Simpson
[2001] NSWCCA 534 Para 54

…the minimum period that he should be imprisoned must properly reflect the gravity of his offences and the punitive purposes of sentencing: R v Simpson[2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Regina v Simpson
[1999] NSWCCA 367 Para 54

…that he should be imprisoned must properly reflect the gravity of his offences and the punitive purposes of sentencing: R v Simpson[2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Gray v Motor Accident Commission
[1998] HCA 70 Para 50

…re 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; [1998] HCA 70 at [62] to [63].…
Mill v The Queen
[1988] HCA 70 Para 50

…ence 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; [1998] HCA 70 at [62] to [63].…

Legislation cited in this decision · 2

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 30)
Crimes Act 1900 (ACT)
1 mention

Medium Neutral Citation:	R v Wilson (a pseudonym) [2023] NSWDC 354
Hearing dates:	21 April 2023
Date of orders:	21 April 2023
Decision date:	21 April 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence – imprisonment for 9 years with a non‑parole period of 5 years and 9 months
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child <10 CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years — Victim under authority CRIMINAL PROCEDURE — Trial — Jury — Sexual offence proceedings SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victim — Victim impact statement SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences — Objective seriousness SENTENCING — Subjective considerations on sentence — Health issues — Special circumstances
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	BT v R [2010] NSWCCA 267 Clarkson v R [2011] VSCA 152 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Dungay v R [2020] NSWCCA 209 Hili v The Queen ((2010) 242 CLR 520; [2010] HCA 45 JJ v R [2020] NSWCCA 165 LB v R [2019] NSWCCA 151 MAK v R [2006] NSWCCA 381 Mill v The Queen (1988) 166 CLR 59; [1998] HCA 70 Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 R v AJP [2004] NSWCCA 434 R v Clinch (1994) 72 A Crim R 301 R v DN [2023] NSWCCA 39 R v Gavel [2014] NSWCCA 56 R v NJK [2011] NSWCCA 151 R v Simpson; 53 NSWLR 704; [2001] NSWCCA 534 Stanton v R [2021] NSWCCA 123 The Queen v Pham; (2015) 256 CLR 550; [2015] HCA 39
Texts Cited:	Commonwealth of Australia, Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report, (2017) vol 3
Category:	Sentence
Parties:	Douglas Wilson (the offender) Director of Public Prosecutions (the Crown)
Representation:	Counsel: S Fraser (for the offender) Solicitors: A Hughes (for the Director of Public Prosecutions) McAnaney Lawyers (for the offender)
File Number(s):	2022/62062
Publication restriction:	The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s 578A Crimes Act 1900 (NSW) and s 15A Children (Criminal Proceedings) Act 1987 (NSW). Identifying information has been removed from this version of the judgment to comply with the statute. A pseudonym has been used for the name of the offender and complainant in this published judgment.