R v WS - [2021] NSWDC 135

District Court

New South Wales

Medium Neutral Citation: R v WS [2021] NSWDC 135
Hearing dates: 12 March 2021
Date of orders: 1 April 2021
Decision date: 01 April 2021
Jurisdiction: Criminal
Before: R. J. Weber SC DCJ
Decision:
(1) The offender is sentenced to a term of imprisonment of 4 years and 3 months, with a non-parole period of 2 years and 6 months.
(2) The Court directs that such a term of imprisonment shall commence on 1 April 2021 and that the non-parole period shall expire on 30 September 2023, with the balance to expire on 30 June 2025.

Catchwords:
CRIMES — Child sex offences — Indecent assault — Sexual intercourse without consent — historic offences
SENTENCING — Sentencing procedure — Disputed facts — Findings of fact – Question as to the age of the victim on the date of the offences – Where the date range of indictment encompassed periods at which the victim was 15 years of age and 16 years of age – Where different maximum penalties were available depending on the victim’s age under the now repealed s 61D(1) – The date range on indictment are particulars, not elements – no finding to be attributed to the jury – the evidence establishes the date of the offences beyond reasonable doubt
SENTENCING — Sentencing procedure — Disputed facts — Findings of fact at sentence – Uncharged sexual acts not proven beyond reasonable doubt – Where the use of a knife is an integral part of the res gestae and therefore attributable to the jury’s finding of guilt beyond reasonable doubt
SENTENCING — Aggravating factors — Use of weapon — Mitigating factors — No record of previous convictions — Prior good character — Not part of a planned or organised criminal activity — Unlikely to re-offend — Subjective considerations on sentence — Special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Dimian v R [2016] NSWCCA 223 at [49]
Gregg v The Queen [2020] NSWCCA 245 at [395]
Keung v The Queen [2008] NSWCCA 193 at [25]-[31]
Markarian v The Queen (2005) 228 CLR 357 at [51]
R v Isaacs (1997) 41 NSWLR 374 at [377]-[378]
R v Lilley (2004) 150 A Crim R 591 at [41], [53]
R v King (2004) 150 A Crim R 409 at [139]-[141]
R v Olbrich (1999) CLR 270 at [27]-[28]
R v Wickham [2004] NSWCCA 193
Saffron v The Queen (1988) 17 NSWLR 395
Savvas v The Queen (1995) 183 CLR 1 at [8]
The Queen v Meaton (1986) 160 CLR 359 at p 367

Category: Sentence
Parties: Regina (Crown)
WS (Offender)
Representation:
Counsel:
Ms M Curry (Crown)
Mr P Doyle (Offender)
Solicitors:
The Office of the Director of Public Prosecutions
Doyle Legal (Offender)

File Number(s): 2018/00251010
Publication restriction:
Pursuant to s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987, the names and identifying information of the person, KS, to whom these proceedings relate and who was a child at the time of 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 WS

Details

AGLC: R v WS [2021] NSWDC 135
Case: [2021] NSWDC 135
Decision Date: 01 April 2021

CaseChat Overview and Summary

In the case of R v WS, the defendant was convicted of various child sex offences, including indecent assault and sexual intercourse without consent. The case was heard by the Supreme Court of Victoria. The central issue in the case was the determination of the exact age of the victim at the time of the offences, as this would determine the applicable maximum penalties under the repealed s 61D(1) of the Crimes Act. The court also had to consider uncharged sexual acts and the use of a knife during the offences.

The court addressed the issue of the victim’s age at the time of the offences by clarifying that the date range provided in the indictment was a particular, not an element of the offence. The court found that the evidence established the dates of the offences beyond reasonable doubt, but did not require the jury to attribute a specific date to the offence. In relation to the uncharged sexual acts, the court held that these were not proven beyond reasonable doubt and thus could not be taken into account as aggravating factors. However, the use of a knife was found to be integral to the res gestae and was thus attributable to the jury’s finding of guilt.

In sentencing, the court considered the use of a weapon as an aggravating factor, but also took into account mitigating factors such as the offender’s lack of a criminal record, prior good character, and the likelihood of not re-offending. The court found that the offender was not part of a planned or organised criminal activity. After weighing all the factors, the court sentenced the offender to a term of imprisonment of 4 years and 3 months, with a non-parole period of 2 years and 6 months. The court ordered that the term of imprisonment would commence on 1 April 2021, with the non-parole period expiring on 30 September 2023 and the balance of the sentence expiring on 30 June 2025.

Orders

Orders of the court

(1) The offender is sentenced to a term of imprisonment of 4 years and 3 months, with a non-parole period of 2 years and 6 months.

(2) The Court directs that such a term of imprisonment shall commence on 1 April 2021 and that the non-parole period shall expire on 30 September 2023, with the balance to expire on 30 June 2025.

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.

Medium Neutral Citation:	R v WS [2021] NSWDC 135
Hearing dates:	12 March 2021
Date of orders:	1 April 2021
Decision date:	01 April 2021
Jurisdiction:	Criminal
Before:	R. J. Weber SC DCJ
Decision:	(1) The offender is sentenced to a term of imprisonment of 4 years and 3 months, with a non-parole period of 2 years and 6 months. (2) The Court directs that such a term of imprisonment shall commence on 1 April 2021 and that the non-parole period shall expire on 30 September 2023, with the balance to expire on 30 June 2025.
Catchwords:	CRIMES — Child sex offences — Indecent assault — Sexual intercourse without consent — historic offences SENTENCING — Sentencing procedure — Disputed facts — Findings of fact – Question as to the age of the victim on the date of the offences – Where the date range of indictment encompassed periods at which the victim was 15 years of age and 16 years of age – Where different maximum penalties were available depending on the victim’s age under the now repealed s 61D(1) – The date range on indictment are particulars, not elements – no finding to be attributed to the jury – the evidence establishes the date of the offences beyond reasonable doubt SENTENCING — Sentencing procedure — Disputed facts — Findings of fact at sentence – Uncharged sexual acts not proven beyond reasonable doubt – Where the use of a knife is an integral part of the res gestae and therefore attributable to the jury’s finding of guilt beyond reasonable doubt SENTENCING — Aggravating factors — Use of weapon — Mitigating factors — No record of previous convictions — Prior good character — Not part of a planned or organised criminal activity — Unlikely to re-offend — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Dimian v R [2016] NSWCCA 223 at [49] Gregg v The Queen [2020] NSWCCA 245 at [395] Keung v The Queen [2008] NSWCCA 193 at [25]-[31] Markarian v The Queen (2005) 228 CLR 357 at [51] R v Isaacs (1997) 41 NSWLR 374 at [377]-[378] R v Lilley (2004) 150 A Crim R 591 at [41], [53] R v King (2004) 150 A Crim R 409 at [139]-[141] R v Olbrich (1999) CLR 270 at [27]-[28] R v Wickham [2004] NSWCCA 193 Saffron v The Queen (1988) 17 NSWLR 395 Savvas v The Queen (1995) 183 CLR 1 at [8] The Queen v Meaton (1986) 160 CLR 359 at p 367
Category:	Sentence
Parties:	Regina (Crown) WS (Offender)
Representation:	Counsel: Ms M Curry (Crown) Mr P Doyle (Offender) Solicitors: The Office of the Director of Public Prosecutions Doyle Legal (Offender)
File Number(s):	2018/00251010
Publication restriction:	Pursuant to s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987, the names and identifying information of the person, KS, to whom these proceedings relate and who was a child at the time of the…