WAP v R

Case [2017] NSWCCA 212 1 September 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: WAP v R [2017] NSWCCA 212
Hearing dates: 2 May 2017
Date of orders: 01 September 2017
Decision date: 01 September 2017
Before: Johnson J at [1]
Beech-Jones J at [121]
Fagan J at [122]
Decision:
Leave to appeal against sentence granted. Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – two offences of having sexual intercourse without consent contrary to s.61l Crimes Act 1900 – offence of armed robbery contrary to s.97 Crimes Act 1900 – further s. 61l offence taken into account on a Form 1 – offences committed in 1992 – Applicant not charged until 2013 following “cold case” DNA match – Applicant sentenced to aggregate term of imprisonment for 10 years with a non-parole period of six years – claim that sentencing Judge infringed De Simoni principle – error not demonstrated – claim of error with respect to harm to victim – error not demonstrated – claim of error in approach to delay and totality in relation to sentences imposed for other offences committed by the Applicant in 1993 – no error demonstrated -- claim that aggregate sentence manifestly excessive – offences involved considerable objective gravity –aggregate sentence not manifestly excessive - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DF v R [2012] NSWCCA 171
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
R v Dimian [2016] NSWCCA 223
R v Todd [1982] 2 NSWLR 517
R v WAP (Court of Criminal Appeal, Beazley JA, Studdert and Sully JJ, 19 August 1996, unreported)
R v Youkhana [2004] NSWCCA 412
Stewart v R [2012] NSWCCA 183
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Texts Cited: Hon JJ Spigelman AC, “Address to Parole Authorities Conference 2006” (2006) 8 TJR 11
Category: Principal judgment
Parties: WAP (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms R Burgess (Applicant)
Ms HR Roberts (Respondent)
Solicitors:
Legal Aid, NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/345640
Publication restriction: ---
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

---

Citation:

---

Date of Decision:

16 May 2016

Before:

Judge Hanley SC

File Number(s):

2013/345640

Judgment

JOHNSON J: The Applicant, WAP, seeks leave to appeal with respect to an aggregate sentence of imprisonment imposed at the Penrith District Court on 16 May 2016 for offences of sexual assault and armed robbery. The Applicant is described by the use of initials as this course had been adopted by this Court in 1996 with…

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 WAP v R

Details

AGLC: WAP v R [2017] NSWCCA 212
Case: [2017] NSWCCA 212
Decision Date: 01 September 2017

CaseChat Overview and Summary

WAP appealed against his sentence for two counts of sexual intercourse without consent, and one count of armed robbery. The offences were committed in 1992, but WAP was not charged until 2013, following a DNA match in a “cold case.” The sentence imposed was an aggregate term of imprisonment for 10 years, with a non-parole period of six years. WAP argued that the sentencing judge had infringed the principles established in De Simoni, erred in assessing the harm to the victims, and erred in the approach to delay and totality in relation to the sentences imposed for the other offences committed by the Applicant in 1993. The appeal against sentence was dismissed. The court found that the sentencing judge had not infringed the De Simoni principle, erred in assessing the harm to the victims, or erred in the approach to delay and totality. The court also found that the aggregate sentence was not manifestly excessive given the objective gravity of the offences.

The legal issues before the court were whether the sentencing judge had correctly applied the principles established in De Simoni, whether the sentencing judge had erred in assessing the harm to the victims, and whether the sentencing judge had erred in the approach to delay and totality. The court found that the sentencing judge had not erred in any of these respects. The court found that the sentencing judge had correctly applied the principles established in De Simoni, and had correctly assessed the harm to the victims. The court also found that the sentencing judge had correctly approached the issues of delay and totality.

The court's reasoning was based on a detailed analysis of the sentencing judge's reasons. The court found that the sentencing judge had correctly identified the relevant principles and had applied them to the facts of the case. The court also found that the sentencing judge had correctly assessed the harm to the victims, and had correctly approached the issues of delay and totality. The court found that the aggregate sentence was not manifestly excessive given the objective gravity of the offences. The appeal was dismissed.

Orders