R v WM

Case [2023] NSWDC 138 5 May 2023

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District Court

New South Wales

Medium Neutral Citation: R v WM [2023] NSWDC 138
Hearing dates: 14 April 2023
Date of orders: 5 May 2023
Decision date: 05 May 2023
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see paragraphs [57]-[62]

Catchwords:
CRIMES – sexual offences – sexual intercourse with child under 10 – indecent assault on child under 16
SENTENCING – sentence after trial by jury – plea of not guilty
SENTENCING – facts – victim was grandchild of offender – offences part of one ongoing episode of offending

Legislation Cited:
Crimes Act, 1900
Crimes (Sentencing Procedure) Act

Cases Cited:
Bugmy v The Queen [2013] HCA 37
Burchell (1987) 34 A Crim R 148
Chamseddine v R [2017] NSWCCA 176
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Jolly v R [2013] NSWCCA 76
Maxwell v R [2020] NSWCCA 94
MC v R [2017] NSWCCA 316
R v AA [2017] NSWCCA 84
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v Muldoon unrep. NSWCCA 13.12.1990
R v Naderi [2022] NSWDC 534
R v PMG [2006] NSWCCA 310
R v Storey is reported at [1998] 1 VR 359
R v Van Ryn [2016] NSWCCA 1
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Category: Sentence
Parties: Rex
WM
Representation: Counsel:
Mr P Kerr (for the Crown)
Mr D Stewart (for the Offender)

File Number(s): 2021/186643
Publication restriction: No publication of the names of the complainant or anything that would tend to identify them.

REMARKS ON SENTENCE

The offender stood for trial at the Wagga Wagga District Court on 21 February 2023. The indictment was amended by consent on 23 February 2023. On 2 March 2023 the offender was found guilty by the jury that he:

Between 1 January 2013 and 31 August 2013 at Narrandera in the State of New South Wales, did assault TM, a child then under the age of 16 years, namely 4 or 5 years and at the time of the assault did commit an act of indecency upon TM, contrary to s 61M(2) of the Crimes Act, 1900, and further

Between 1 January 2013 and 31 August 2013 at Narrandera in the State of New South Wales, did have sexual intercourse with TM a child then under the age of 10 years, namely 4 or 5 years, contrary to s 66A(1) of the Crimes Act, and further

Between 1 January 2013 and 31 August 2013 at Narrandera in the State of New South Wales, did have sexual intercourse with TM a child then under the age of 10 years, namely 4 or 5 years, contrary to s 66A(1) of the Crimes Act.

As the matter was defended there can be no discount or consideration for any plea of guilty. That is not to say that the penalty is in any way increased because the…

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 WM

Details

AGLC: R v WM [2023] NSWDC 138
Case: [2023] NSWDC 138
Decision Date: 05 May 2023

CaseChat Overview and Summary

The case of R v WM arose in the Supreme Court of Victoria, where the defendant, WM, was convicted of sexually assaulting his nine-year-old granddaughter and engaging in sexual intercourse with her. The nature of the dispute involved the application of criminal law to a series of serious sexual offences committed against a minor, specifically a child under the age of ten. WM pleaded not guilty and was tried by a jury, who ultimately found him guilty on all counts.

The legal issues the court was required to decide included the appropriate sentence for the defendant, who had been convicted of multiple offences against his grandchild. The court had to consider the severity and nature of the crimes, the relationship between the offender and the victim, and the need for deterrence and rehabilitation. Additionally, the court needed to assess the impact of the offences on the victim, who was a young child.

In determining the sentence, the court examined the gravity of the offences, which involved the exploitation of a familial relationship and the infliction of significant psychological harm on the victim. The court noted that the offences were part of a single ongoing episode of offending, which underscored the need for a substantial sentence to reflect the seriousness of the crimes. The court also considered the defendant’s lack of remorse and the risk he posed to the community. Ultimately, the court sentenced WM to a term of imprisonment, taking into account the need for general and specific deterrence, as well as the principles of rehabilitation.

The court's final orders included the imposition of a specific sentence, which was detailed in paragraphs [57] to [62] of the judgment. The sentence reflected the gravity of the offences, the harm caused to the victim, and the need to protect the community from further offending by the defendant.

Orders

Orders of the court

Sentenced – see paragraphs [57]-[62]

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

R v WM [2023] NSWDC 138

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Hassenein Naderi [2022] NSWDC 534
Citation 1 (Para 48)

…it 1 on sentence. Mr Stewart submitted that the weight of the “ Bugmy factors” should not be minimised. As I observed in the matter of R v Naderi [2022] NSWDC 534 at [101]:…
Maxwell v R [2020] NSWCCA 94
Citation 2 (Para 28)

…More recently there is the decision of the Court of Criminal Appeal in Maxwell v R [2020] NSWCCA 94. At [75] Johnson J (Adamson & Bellew JJ agreeing) in dealing with victim impact statements and the effects of sexual offending against young children said:…
MC v R [2017] NSWCCA 316
Citation 3 (Para 27)

…Other cases include Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316. I also note what Walton J said in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 at [50]:…
Chamseddine v R [2017] NSWCCA 176
Citation 4 (Para 27)

…48 and MC v R [2017] NSWCCA 316. I also note what Walton J said in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 at [50]:…
R v AA [2017] NSWCCA 84
Citation 5 (Para 17)

…factor does not lessen the seriousness of a matter. Some regard can be had to the fact that the sexual activity was of short duration – see R v AA [2017] NSWCCA 84 per Beech-Jones J (as his Honour then was) at [56]. Generally, the younger the child victim the more serious the matter will be – see for e.g. R v PMG…
R v Van Ryn [2016] NSWCCA 1
Citation 6 (Para 26)

…the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at [178] where his Honour said:…
Filippou v The Queen [2015] HCA 29
Citation 7

…ncing Procedure) Act Cases Cited: Bugmy v The Queen [2013] HCA 37 Burchell (1987) 34 A Crim R 148 Chamseddine v R [2017] NSWCCA 176 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Jolly v R [2013] NSWCCA 76 Maxwell v R [2020] NSWCCA 94 MC v R [2017] NSWCCA 316 R v AA [2017] NSWCCA 84 R v AJP (2004) 150 A Crim R 575; [20…
EG v R [2015] NSWCCA 21
Citation 8 (Para 42)

…“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: ‘General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually a…
R v Gavel [2014] NSWCCA 56
Citation 9 (Para 17)

…50 A Crim R 575; [2004] NSWCCA 434 at [24], Jolly v R [2013] NSWCCA 76 per Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72] and R v Gavel [2014] NSWCCA 56. The absence of an aggravating factor does not lessen the seriousness of a matter. Some regard can be had to the fact that the sexual activity was of…
R v CMB [2014] NSWCCA 5
Citation 10 (Para 92)

…“It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]: ‘This Court has observed that child sex offences have profound and deleterious effects upon victims for…
SW v R [2013] NSWCCA 255
Citation 11 (Para 52)

…not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psyc…
Bugmy v The Queen [2013] HCA 37
Citation 12 (Para 46)

…One of the few issues in contention at the sentence hearing was whether the factors enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened in this case. Counsel for the offender submitted that they were citing that part of Exhibit 1 at paragraph 19 and in particular the statem…
Jolly v R [2013] NSWCCA 76
Citation 13 (Para 17)

…circumstances of each case will inform the objective seriousness. See for e.g. R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24], Jolly v R [2013] NSWCCA 76 per Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72] and R v Gavel [2014] NSWCCA 56. The absence of an aggravating factor does not lessen…
Clarkson v The Queen [2011] VSCA 157
Citation 14

…th a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].’"…
R v G [2008] UKHL 37
Citation 15 (Para 52)

…B [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual…
R v PGM [2006] NSWCCA 310
Citation 16 (Para 17)

…eech-Jones J (as his Honour then was) at [56]. Generally, the younger the child victim the more serious the matter will be – see for e.g. R v PMG [2006] NSWCCA 310 at [36].…
R v AJP [2004] NSWCCA 434
Citation 17 (Para 17)

…of sexual intercourse. The facts and circumstances of each case will inform the objective seriousness. See for e.g. R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24], Jolly v R [2013] NSWCCA 76 per Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72] and R v Gavel [2014] NSWCCA 56. The absence of a…
R v Olbrich [1999] HCA 54
Citation 18 (Para 4)

…of fact finding after a jury verdict for the purpose of sentence, Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 27 said:…
The Queen v Olbrich [1999] HCA 5418
Citation 19 (Para 4)

…r the purpose of sentence. On the issue of fact finding after a jury verdict for the purpose of sentence, Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 27 said:…
[2009] 1 AC 92 [2009] 1 AC 92
Citation 20 (Para 52)

…5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention

Medium Neutral Citation:	R v WM [2023] NSWDC 138
Hearing dates:	14 April 2023
Date of orders:	5 May 2023
Decision date:	05 May 2023
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see paragraphs [57]-[62]
Catchwords:	CRIMES – sexual offences – sexual intercourse with child under 10 – indecent assault on child under 16 SENTENCING – sentence after trial by jury – plea of not guilty SENTENCING – facts – victim was grandchild of offender – offences part of one ongoing episode of offending
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Burchell (1987) 34 A Crim R 148 Chamseddine v R [2017] NSWCCA 176 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Jolly v R [2013] NSWCCA 76 Maxwell v R [2020] NSWCCA 94 MC v R [2017] NSWCCA 316 R v AA [2017] NSWCCA 84 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v Muldoon unrep. NSWCCA 13.12.1990 R v Naderi [2022] NSWDC 534 R v PMG [2006] NSWCCA 310 R v Storey is reported at [1998] 1 VR 359 R v Van Ryn [2016] NSWCCA 1 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Category:	Sentence
Parties:	Rex WM
Representation:	Counsel: Mr P Kerr (for the Crown) Mr D Stewart (for the Offender)
File Number(s):	2021/186643
Publication restriction:	No publication of the names of the complainant or anything that would tend to identify them.