R v Wingate

[2022] NSWDC 184

District Court

New South Wales

Medium Neutral Citation:

R v Wingate [2022] NSWDC 184

Hearing dates:

25/10/21-10/11/21, 16/12/21, 25/2/22, 18/3/22

Date of orders:

18/3/22

Decision date:

18 March 2022

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 4 years 2 months with a NPP of 2 years 9 months (16/12/20-15/9/23).

The indicative sentences for each of the three counts are 3 years 2 months.

Catchwords:

Crime – Sentence – Commit act of indecency while outside Australia on a person under the age of 16 years

Legislation Cited:

Crimes Act 1914

Cases Cited:

Assheton [2002] WASCA 209

Lee v The Queen [2000] WASCA 73

Merrill v DPP [2018] VSCA 62

R v GP [2010] NSWDC 300

R v ONA [2009] VSCA 146

R v Vanderzyden [2012] QCA 89

Sage v The Queen [2007] NSWCCA 224

Salman v Commonwealth DPP [2011] NSWCCA 192

Weininger v R [2003] 212 CLR 629

Category:

Sentence

Parties:

Commonwealth DPP – Crown
Robert George Wingate - Offender

Representation:

Counsel:
Ms L Barnes for Crown
Mr A Norrie for Offender

File Number(s):

2020/297191

Publication restriction:

Non-publication order in relation to the identity of the complainant

sentence

1. The offender, Robert Wingate, is for sentence in relation to three offences under s 50BC(1)(a) of the Crimes Act 1914, being offences of committing an act of indecency while outside Australia on a person under the age of 16 years. The maximum penalty for each of those offences is 12 years’ imprisonment. The maximum penalty is an important guidepost in the sentencing exercise, to which I have had regard.

2. Each of the offences occurred between about 27 February 2006 and 2 June 2006 in Iloilo City in the Philippines. The offender was found guilty of the offences by a jury following his trial, which concluded on 10 November 2021. The offender’s sentence hearing was initially set for 16 December 2021. However, the offender was sick with COVID‑19 at that time, and the hearing was adjourned to 25 February 2022, when I heard submissions.

FACTS

3. As the jury’s verdicts do not specify the facts found by them, it is for me to determine the facts but to do so in a manner which is consistent with the jury’s verdicts. Matters in aggravation must be proved beyond reasonable doubt, while matters in mitigation need only be proved on the balance of probabilities. The Crown has provided a proposed facts on sentence document which was the subject of some submissions during the sentence hearing. Some of the proposed facts are agreed, while others are not. Having taken into account the submissions by both the Crown and the defence, I find the following facts.

4. During 2005, the offender, who was living in Australia, began communicating with the mother of the victim, who lived in the Philippines. During the communications, which were mostly via webcam, the offender met some of her children, including the victim. At the time that the offender met the victim via webcam,…