Medium Neutral Citation: R v Winfield (a pseudonym) [2024] NSWDC 656
Hearing dates: 16 December 2024
Date of orders: 16 December 2024
Decision date: 16 December 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 12 years with a non-parole period of 8 years

Catchwords:
CRIME — Child sex offences — Persistent sexual abuse of a child pursuant to s 66EA — Maintaining an unlawful sexual relationship with a child —
— Film person in private act — Circumstances of aggravation — Under authority
SENTENCING — Mitigating factors — Prior good character — No record of previous convictions
SENTENCING — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Moral culpability — Objective seriousness — What is a ‘crushing’ sentence — Special circumstances — Multiple offences — Totality
SENTENCING — Subjective considerations on sentence — Indigenous offender — Mental disorders — Alcohol addiction — Childhood sexual abuse — Childhood trauma

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

Cases Cited:
Cahyadi v R [2007] NSWCCA 1
Clarkson v The Queen [2011] VSCA 152
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
Director of Public Prosecutions v DJK [2003] VSCA 109
Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346
MAK v R; R v MSK [2006] NSWCCA 381
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59
MK v R; RB v R [2023] NSWCCA 180
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Clinch (1994) 72 A Crim R 301
R v Fisher [2024] NSWCCA 191
R v Gavel [2014] NSWCCA 56
R v Holder; R v Johnston [1983] 3 NSWLR 245
R v RB [2022] NSWCCA 142
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Tuala [2015] NSWCCA 8
R v Van Ryn [2016] NSWCCA 1
RA v R [2024] NSWCCA 14
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Texts Cited:
W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497

Category: Sentence
Parties: Derrick Winfield (a pseudonym)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
J Hopper (for the offender)
C Triscari (for the Crown)
T Hennessy (for the Crown)
Solicitors:
George Sten and Co Criminal Lawyers (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s): 2022/237387
Publication restriction: Pseudonyms have been used for the names of the offender and the child victims. 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. Identifying information has been removed from this version of the judgment to comply with the statute.

JUDGMENT…

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 Winfield (a pseudonym)

Details

AGLC: R v Winfield (a pseudonym) [2024] NSWDC 656
Case: [2024] NSWDC 656
Decision Date: 16 December 2024

CaseChat Overview and Summary

The case of R v Winfield involved an individual, referred to as Winfield, who was convicted of multiple offences of persistent sexual abuse of a child, including maintaining an unlawful sexual relationship. The matter was heard in the Supreme Court of Victoria. Winfield was also found guilty of filming a private act without consent and faced charges under the circumstances of aggravation as he abused his position of authority over the child.

The court was required to determine the appropriate sentence, considering several legal issues. These included the nature and gravity of the offences, the impact on the victim, the offender's moral culpability, and the necessity for general and specific deterrence. The court also had to consider mitigating factors, such as Winfield's previously good character, lack of prior convictions, and his mental health issues, including alcohol addiction and childhood trauma.

In delivering the judgment, the court first emphasised the egregious nature of the crimes committed by Winfield. It noted the significant moral culpability and the need for general deterrence. The court found the aggregate sentence of imprisonment to be appropriate, given the multiple offences and the cumulative impact on the victim. It considered the totality of the offending and imposed a sentence of 12 years with a non-parole period of 8 years, balancing the need for punishment with the mitigating factors presented.

The final orders of the court mandated an aggregate sentence of imprisonment of 12 years with a non-parole period of 8 years. This sentence reflected the court's determination of the appropriate level of punishment for the offences committed, taking into account both the severity of the crimes and the mitigating circumstances of the offender's background and personal circumstances.

Orders

Orders of the court

Aggregate sentence of imprisonment of 12 years with a non-parole period of 8 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Winfield (a pseudonym) [2024] NSWDC 656

Most Recent Citation

Agius v JB Slab Pty Ltd [2025] ACTMC 2

Cases Citing This Decision

Agius v JB Slab Pty Ltd [2025] ACTMC 2
Citation 1

…Nash v Silver City Drilling (NSW) [2017] NSWCCA 96 SafeWork NSW v Modco Homes [2024] NSWDC 656 Agius v Transport Canberra and City Services Directorate [2024] ACTMC 17 Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023] ACTMC 5 Grey v Agnew Building Supplies Pty Ltd [2023] ACTMC 13 Foster v Better Building…

See all citing cases →

Cases Cited

R v Fisher [2024] NSWCCA 191
Citation 1 (Para 9)

…as sentencing for the course of conduct as alleged in specific matters had they crystallised into convictions for representative offences: R v Fisher [2024] NSWCCA 191 at [114].…
R v Narouz [2024] NSWCCA 14
Citation 2 (Para 23)

…offence is the maintenance of the unlawful sexual relationship not the identified “ingredient offences”: R v RB [2022] NSWCCA 142 at [54]; RA v R [2024] NSWCCA 14. While I have referred to the individual charged acts, they do not determine this sentencing exercise. This sentencing exercise is different to sentencin…
MK v R; RB v R [2023] NSWCCA 180
Citation 3 (Para 61)

…I have been referred to the recent case of R v Fisher and MK v R; RB v R [2023] NSWCCA 180. There are not many cases under the new legislation to which I can refer.…
R v RB [2022] NSWCCA 142
Citation 4 (Para 23)

…e maintained. The gravamen of the offence is the maintenance of the unlawful sexual relationship not the identified “ingredient offences”: R v RB [2022] NSWCCA 142 at [54]; RA v R [2024] NSWCCA 14. While I have referred to the individual charged acts, they do not determine this sentencing exercise. This sentencing e…
R v Holder [2019] SASCFC 73
Citation 5 (Para 57)

…An ultimate aggregate sentence should not exceed what is called for in all the circumstances: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ); Van Ryn at [228]-[230].…
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
Citation 6 (Para 58)

…ever may well depend on the observer, whether they are the offender, the victim or the community: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [26]-[45] (Basten JA).…
R v Van Ryn [2016] NSWCCA 1
Citation 7 (Para 24)

…d psychological harm taken to be caused by premature sexual activity: Clarkson v The Queen [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1.…
R v Pham [2015] HCA 39
Citation 8

…NSWCCA 8 R v Van Ryn [2016] NSWCCA 1 RA v R [2024] NSWCCA 14 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Texts Cited: W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497 Category: Sentence Parties: Derrick…
R v Tuala [2015] NSWCCA 8
Citation 9 (Para 33)

…ts to the kind of harm that one might expect from an offence of such seriousness. There is no difficulty in accepting its contents: R v Tuala [2015] NSWCCA 8.…
R v Gavel [2014] NSWCCA 56
Citation 10 (Para 24)

…children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v The Queen [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1.…
Clarkson v R [2011] VSCA 152
Citation 11 (Para 24)

…hild is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v The Queen [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1.…
Cahyadi v R [2007] NSWCCA 1
Citation 12 (Para 55)

…ing behaviour: Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1.…
R v MAK [2006] NSWCCA 381
Citation 13 (Para 56)

…would have significantly more impact than a sentence of 5 years, for example: R v Clinch (1994) 72 A Crim R 301 at [306] approved in MAK v R; R v MSK [2006] NSWCCA 381.…
Markarian v The Queen [2005] HCA 25
Citation 14 (Para 38)

…ss of such matters. That said, it is not appropriate to start with the maximum and then make proportional deductions from it: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [30]-[31].…
DPP v DJK [2003] VSCA 109
Citation 15 (Para 34)

…done by offences such as this. For practical purposes it is the only way a person, a victim, can speak up: Director of Public Prosecutions v DJK [2003] VSCA 109 at [17]-[18].…
R v Simpson [2001] NSWCCA 534
Citation 16 (Para 59)

…arole period. But the minimum term he must be held in gaol must properly reflect what he did and the objective seriousness of his crimes: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Regina v Simpson [1999] NSWCCA 367
Citation 17 (Para 59)

…he minimum term he must be held in gaol must properly reflect what he did and the objective seriousness of his crimes: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
R v Henry [1999] NSWCCA 111
Citation 18 (Para 53)

…s less capable than people who are not so disadvantaged in his capacity to deal with alcohol and abuse of alcohol or control his conduct: Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273].…
R v Henry [1999] NSWCA 111
Citation 19 (Para 53)

…people who are not so disadvantaged in his capacity to deal with alcohol and abuse of alcohol or control his conduct: Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273].…
Gray v Motor Accident Commission [1998] HCA 70
Citation 20 (Para 55)

…entence for each offence and structure the sentences, so the overall criminality is just and appropriate to his offending behaviour: Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1.…
Postiglione v the Queen [1997] HCA 26
Citation 21 (Para 55)

…iminality is just and appropriate to his offending behaviour: Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1.…
Mill v The Queen [1988] HCA 70
Citation 22 (Para 55)

…h offence and structure the sentences, so the overall criminality is just and appropriate to his offending behaviour: Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 30E(5)
2 mentions (from Para 28)
Crimes Act 1900 (ACT) 66EA(1)
2 mentions (from Para 2)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention

Medium Neutral Citation:	R v Winfield (a pseudonym) [2024] NSWDC 656
Hearing dates:	16 December 2024
Date of orders:	16 December 2024
Decision date:	16 December 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 12 years with a non-parole period of 8 years
Catchwords:	CRIME — Child sex offences — Persistent sexual abuse of a child pursuant to s 66EA — Maintaining an unlawful sexual relationship with a child — — Film person in private act — Circumstances of aggravation — Under authority SENTENCING — Mitigating factors — Prior good character — No record of previous convictions SENTENCING — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Moral culpability — Objective seriousness — What is a ‘crushing’ sentence — Special circumstances — Multiple offences — Totality SENTENCING — Subjective considerations on sentence — Indigenous offender — Mental disorders — Alcohol addiction — Childhood sexual abuse — Childhood trauma
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Cahyadi v R [2007] NSWCCA 1 Clarkson v The Queen [2011] VSCA 152 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Director of Public Prosecutions v DJK [2003] VSCA 109 Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 MAK v R; R v MSK [2006] NSWCCA 381 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 MK v R; RB v R [2023] NSWCCA 180 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Clinch (1994) 72 A Crim R 301 R v Fisher [2024] NSWCCA 191 R v Gavel [2014] NSWCCA 56 R v Holder; R v Johnston [1983] 3 NSWLR 245 R v RB [2022] NSWCCA 142 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Tuala [2015] NSWCCA 8 R v Van Ryn [2016] NSWCCA 1 RA v R [2024] NSWCCA 14 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
Texts Cited:	W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497
Category:	Sentence
Parties:	Derrick Winfield (a pseudonym) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: J Hopper (for the offender) C Triscari (for the Crown) T Hennessy (for the Crown) Solicitors: George Sten and Co Criminal Lawyers (for the offender) Public Prosecutions (NSW) (Crown)
File Number(s):	2022/237387
Publication restriction:	Pseudonyms have been used for the names of the offender and the child victims. 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. Identifying information has been removed from this version of the judgment to comply with the statute.