R v WP

Case [2024] NSWDC 544 15 November 2024

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District Court

New South Wales

Medium Neutral Citation: R v WP [2024] NSWDC 544
Hearing dates: 15 November 2024
Date of orders: 15 November 2024
Decision date: 15 November 2024
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1)   The offender is convicted of the offences.
(2)   I impose a total aggregate sentence of 16 years imprisonment to expire on 2 November 2037.
(3)   I impose a non-parole period of 10 years 5 months to expire on 2 April 2032.
(4)   The earliest date the offender is eligible to be released on parole is on 2 April 2032.
(5)   With respect to H86191580/5, contravene prohibition/restriction in AVO, the offender is convicted without imposing any other penalty.

Catchwords:
CRIME – sentencing following trial – additional pleas after guilty verdict - aggravated sexual intercourse child under 10 years – sexual intercourse child under 10 years – sexual intercourse child above 10 years under 14 years – assault occasioning actual bodily harm on child – form 1 matters

Legislation Cited:
Crime (Sentencing Procedure) Act 1999, ss 3A, 21A(2)(d), 21A(2)(db), 21A(2)(k), 25A(3), 25D, 54A(1), 54A(2), 54B(2)
Crimes Act 1900, ss 59(1), 66A(1), 66A(2), 66C(2)

Cases Cited:
Burr v R [2020] NSWCCA 282
Collier v R [2012] NSWCCA 213
DH v R [2022] NSWCCA 200
EG v R [2015] NSWCCA 21
Giles-Adams v R; Preca v R [2023] NSWCCA 122
Grange v R [2023] NSWCCA 6
HA v R [2023] NSWCCA 274
Hall v R [2021] NSWCCA 220
KM v R [2023] NSWCCA 10
Pender v R [2023] NSWCCA 291
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Eaton [2023] NSWCCA 125
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v JRD [2007] NSWCCA 55
R vLittle [2013] NSWCCA 288
R v Lulham [2016] NSWCCA 287
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Olbrich (1999) 199 CLR 270 at 281
R v Sharrouf [2023] NSWCCA 13
R v Storey [1998] 1 VR 359 at 369
Rainbow v R [2018] NSWCCA 42
Young (a pseudonym) v R [2022] NSWCCA

Category: Sentence
Parties: Rex
WP
Representation:
Counsel:
Mr P Mulvihill (Crown)
Mr H Maarraoui (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Macedone Legal (Offender)

File Number(s): 2021/0312679
Publication restriction: There is to be no publication of a name that identifies or is likely to lead to the identification of the victims.

Judgment

The offender is to be sentenced with respect three child sex offences following a trial and guilty verdicts. The offences were committed against two of his daughters when they were variously aged between 4 and 12. The offender was found not guilty on a separate offence.
In the meantime, the offender has pleaded guilty to an additional two offences of assault occasioning actual bodily harm against two of his daughters with several offences to be taken into account on a Form 1 arising from the guilty pleas.
The trial indictment…

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 WP

Details

AGLC: R v WP [2024] NSWDC 544
Case: [2024] NSWDC 544
Decision Date: 15 November 2024

CaseChat Overview and Summary

In the case of R v WP, the offender was found guilty of multiple serious offences against children, including aggravated sexual intercourse with a child under 10 years of age, sexual intercourse with a child under 10 years of age, sexual intercourse with a child above 10 years under 14 years, and assault occasioning actual bodily harm on a child. The case was heard by the court, which was tasked with determining the appropriate sentence following the offender's guilty verdict. The court had to consider the severity and nature of the crimes committed, the impact on the victims, and the principles of sentencing for such offences.

The legal issues before the court included the appropriate aggregate sentence to be imposed, the non-parole period, and the earliest date for parole eligibility. The court also had to address the offender's additional pleas and the contravention of a prohibition/restriction in an AVO. The court considered various factors such as the gravity of the offences, the vulnerability of the victims, and the need for deterrence and rehabilitation. The sentencing principles applied included the proportionality of the sentence to the gravity of the offences, the protection of the community, and the offender's capacity for rehabilitation.

After thorough consideration of the evidence and submissions, the court determined that the appropriate aggregate sentence was 16 years imprisonment, with a non-parole period of 10 years 5 months. The earliest date for parole eligibility was set at 2 April 2032. The court also convicted the offender of the additional offence of contravening the AVO, but did not impose any further penalty for this offence. The court emphasised the importance of the sentence in reflecting the seriousness of the crimes and in providing a measure of protection to the community. The offender was convicted of all charges, and the sentence was structured to ensure the offender's accountability and the safety of potential future victims.

Orders

Orders of the court

(1) The offender is convicted of the offences.

(2) I impose a total aggregate sentence of 16 years imprisonment to expire on 2 November 2037.

(3) I impose a non-parole period of 10 years 5 months to expire on 2 April 2032.

(4) The earliest date the offender is eligible to be released on parole is on 2 April 2032.

(5) With respect to H86191580/5, contravene prohibition/restriction in AVO, the offender is convicted without imposing any other penalty.

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 WP [2024] NSWDC 544

Cases Citing This Decision

No citing cases yet.

Cases Cited

Pender v R [2023] NSWCCA 291
Citation 1 (Para 65)

…including, for example DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; and Pender v R [2023] NSWCCA 291, whilst there is, of course, always a need for a sentencing judge to make an assessment of objective seriousness, there is no requirement that a sent…
Ha v The King [2023] NSWCCA 274
Citation 2 (Para 71)

…f position of trust or authority in relation to the victim: Rainbow v R [2018] NSWCCA 42 at [30] to [31]; Burr v R [2020] NSWCCA 282 at [123]; HA v R [2023] NSWCCA 274. Ultimately, the offender conceded that it was open to the court to find there was a breach of trust without offending the De Simoni principle: The Q…
R v Eaton [2023] NSWCCA 125
Citation 3 (Para 65)

…As has been recognised in several recent decisions of the Court of Criminal Appeal, including, for example DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; and Pender v R [2023] NSWCCA 291, whilst there is, of course, always a need for a sentencing judge…
Giles-Adams v R; Preca v R [2023] NSWCCA 122
Citation 4 (Para 94)

…r facilitating the course of justice noting that it avoided the need for the victims and other witnesses to give evidence: Giles-Adams v R; Preca v R [2023] NSWCCA 122.…
R v Sharrouf [2023] NSWCCA 13
Citation 5 (Para 65)

…of the Court of Criminal Appeal, including, for example DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; and Pender v R [2023] NSWCCA 291, whilst there is, of course, always a need for a sentencing judge to make an assessment of objective seriousness, t…
Grange v R [2023] NSWCCA 6
Citation 6 (Para 80)

…abuse on children is now statutorily recognised and a mandatory consideration in accordance with s 25A(3) of the CSPA . As was observed in Grange v R [2023] NSWCCA 6, even in the absence of a victim impact statement or other evidence of psychological harm, the court is entitled to consider that there is a substant…
KM v The King [2023] NSWCCA 10
Citation 7 (Para 65)

…sed in several recent decisions of the Court of Criminal Appeal, including, for example DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; and Pender v R [2023] NSWCCA 291, whilst there is, of course, always a need for a sentencing judge to make an assessm…
DH v R [2022] NSWCCA 200
Citation 8 (Para 65)

…As has been recognised in several recent decisions of the Court of Criminal Appeal, including, for example DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; and Pender v R [2023] NSWCCA 291, whilst there is, of course, always a need for a sentencing judge…
Young (a Pseudonym) v R [2022] NSWCCA 111
Citation 9 (Para 96)

…here the offender has contributed to the delay as a result of the threat to NP accompanying the conduct constituting count 1: Young (a pseudonym) v R [2022] NSWCCA 111 at [50]. I further accept the Crown's submission that the mere fact that the offender is in custody for the first time of itself does not justify a f…
Hall v R [2021] NSWCCA 220
Citation 10 (Para 103)

…ce, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total senten…
Burr v R [2020] NSWCCA 282
Citation 11 (Para 71)

…2)(k) of the CSPA involving abuse of position of trust or authority in relation to the victim: Rainbow v R [2018] NSWCCA 42 at [30] to [31]; Burr v R [2020] NSWCCA 282 at [123]; HA v R [2023] NSWCCA 274. Ultimately, the offender conceded that it was open to the court to find there was a breach of trust without offen…
Rainbow v R [2018] NSWCCA 42
Citation 12 (Para 71)

…specific factor of aggravation under s 21A(2)(k) of the CSPA involving abuse of position of trust or authority in relation to the victim: Rainbow v R [2018] NSWCCA 42 at [30] to [31]; Burr v R [2020] NSWCCA 282 at [123]; HA v R [2023] NSWCCA 274. Ultimately, the offender conceded that it was open to the court to fi…
R v Lulham [2016] NSWCCA 287
Citation 13 (Para 70)

…ctim's home (s 21A(2)(db) of the CSPA) , being a place where the victims were entitled to a reasonable expectation of safety and security: R v Lulham [2016] NSWCCA 287 per Bathurst CJ at [5].…
EG v R [2015] NSWCCA 21
Citation 14 (Para 79)

…terrence and denunciation have a significant role to play with respect to sexual abuse perpetrated on children. As Hoeben CJ at CL observed in EG v R [2015] NSWCCA 21 at [42] (with whom Harrison J and RA Hulme J agreed):…
R v Gavel [2014] NSWCCA 56
Citation 15 (Para 78)

…The courts have consistently recognised the harm inflicted on children that are victims of sexual abuse. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 the Court observed at [110]:…
R v CMB [2014] NSWCCA 5
Citation 16 (Para 92)

…“… that child sex offences have profound and deleterious effects upon victims for many years, if 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, Baro…
R v Little [2013] NSWCCA 288
Citation 17 (Para 96)

…bmitted, it is a relevant factor, in combination with other applicable circumstances, that may justify a finding of special circumstances: R v Little [2013] NSWCCA 288 at [30].…
SW v R [2013] NSWCCA 255
Citation 18 (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 19 (Para 85)

…Whilst the offender initially submitted that the principles in Bugmy v The Queen [2013] HCA 37 were applicable, ultimately this was not pressed. I accept however that the offender’s upbringing, including the infliction of corporal punishment, provides context to the offender’s approach to the discipline of his o…
Collier v R [2012] NSWCCA 213
Citation 20 (Para 96)

…sion that the mere fact that the offender is in custody for the first time of itself does not justify a finding of special circumstances: Collier v R [2012] NSWCCA 213 at [36]. However, as counsel for the offender submitted, it is a relevant factor, in combination with other applicable circumstances, that may justif…
Clarkson v The Queen [2011] VSCA 157
Citation 21

…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 22 (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 JRD [2007] NSWCCA 55
Citation 23 (Para 91)

…In R v JRD [2007] NSWCCA 55 Howie J considered the significance of taking into account other charged offences as follows: –…
R v MAK [2006] NSWCCA 381
Citation 24 (Para 103)

…ential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] (per Spigelman CJ, Whealy J and Howie JJ).…
R v Olbrich [1999] HCA 54
Citation 25 (Para 11)

…he accused are to be taken into account on sentencing it is sufficient if those circumstances are proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at 281 at [27]; R v Storey [1998] 1 VR 359 at 369.…
R v De Simoni [1981] HCA 31
Citation 26 (Para 71)

…hat it was open to the court to find there was a breach of trust without offending the De Simoni principle: The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.…
[2009] 1 AC 92 [2009] 1 AC 92
Citation 27 (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

Crime (Sentencing Procedure) Act 1999 (NSW) 21A(2)(d), 21A(2)(db), 21A(2)(k), 25A(3)...
10 mentions (from Para 8)
Crimes Act 1900 (ACT) 59(1), 66A(1), 66A(2), 66C(2)
5 mentions (from Para 1)

Medium Neutral Citation:	R v WP [2024] NSWDC 544
Hearing dates:	15 November 2024
Date of orders:	15 November 2024
Decision date:	15 November 2024
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) The offender is convicted of the offences. (2) I impose a total aggregate sentence of 16 years imprisonment to expire on 2 November 2037. (3) I impose a non-parole period of 10 years 5 months to expire on 2 April 2032. (4) The earliest date the offender is eligible to be released on parole is on 2 April 2032. (5) With respect to H86191580/5, contravene prohibition/restriction in AVO, the offender is convicted without imposing any other penalty.
Catchwords:	CRIME – sentencing following trial – additional pleas after guilty verdict - aggravated sexual intercourse child under 10 years – sexual intercourse child under 10 years – sexual intercourse child above 10 years under 14 years – assault occasioning actual bodily harm on child – form 1 matters
Legislation Cited:	Crime (Sentencing Procedure) Act 1999, ss 3A, 21A(2)(d), 21A(2)(db), 21A(2)(k), 25A(3), 25D, 54A(1), 54A(2), 54B(2) Crimes Act 1900, ss 59(1), 66A(1), 66A(2), 66C(2)
Cases Cited:	Burr v R [2020] NSWCCA 282 Collier v R [2012] NSWCCA 213 DH v R [2022] NSWCCA 200 EG v R [2015] NSWCCA 21 Giles-Adams v R; Preca v R [2023] NSWCCA 122 Grange v R [2023] NSWCCA 6 HA v R [2023] NSWCCA 274 Hall v R [2021] NSWCCA 220 KM v R [2023] NSWCCA 10 Pender v R [2023] NSWCCA 291 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Eaton [2023] NSWCCA 125 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v JRD [2007] NSWCCA 55 R vLittle [2013] NSWCCA 288 R v Lulham [2016] NSWCCA 287 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Olbrich (1999) 199 CLR 270 at 281 R v Sharrouf [2023] NSWCCA 13 R v Storey [1998] 1 VR 359 at 369 Rainbow v R [2018] NSWCCA 42 Young (a pseudonym) v R [2022] NSWCCA
Category:	Sentence
Parties:	Rex WP
Representation:	Counsel: Mr P Mulvihill (Crown) Mr H Maarraoui (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Macedone Legal (Offender)
File Number(s):	2021/0312679
Publication restriction:	There is to be no publication of a name that identifies or is likely to lead to the identification of the victims.