Waterstone v R

Case [2020] NSWCCA 117


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Waterstone v R [2020] NSWCCA 117
Hearing dates: 19 March 2020
Date of orders: 09 June 2020
Decision date: 09 June 2020
Before: Johnson J at [1]
N Adams J at [17]
Ierace J at [129]
Decision:

(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentences imposed on the applicant in the District Court on 5 July 2019 are quashed. In lieu thereof the following aggregate sentences are imposed under s 53A of the Sentencing Act:

 

Counts 1-2: An aggregate term of imprisonment of 2 years and 3 months commencing on 13 October 2018 and expiring on 12 January 2021 with a non-parole period of 18 months to expire on 12 April 2020;

 

Counts 3-6: An aggregate term of imprisonment of 20 months commencing on 13 April 2020 and expiring on 12 December 2021 and direct that the applicant be released by way of recognizance release order on 12 January 2021 after serving 9 months’ imprisonment upon the applicant entering into a recognizance to be of good behaviour for a period of 11 months.

 

The indicative sentences are as follows:

 Count 1: 2 years’ imprisonment;
Count 2: 2 years’ imprisonment;
Count 3: 18 months’ imprisonment;
Count 4: 18 months’ imprisonment;
Count 5: 18 months’ imprisonment;
Count 6: 18 months’ imprisonment.
Catchwords: CRIMINAL LAW – appeal against sentence – sexual offences against stepdaughter – sentencing judge did not set non-parole period – lack of single recognizance release order for Commonwealth offences – when a fixed sentence should be imposed – finding in relation to aggravation – abuse of trust – objective seriousness – whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 19, s 21A(2)(k), s 44, s 45
Criminal Code Act 1900 (Cth), s 474.17(1)
Crimes Act 1900 (NSW) s 61O(3)(b)
Crimes Act 1914 (Cth), s 16A, s 17A(3), ss19AB(3), s 19AC, s 19 AH
Criminal Appeal Act 1912 (NSW), s 6(3)
Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016
Cases Cited: Beavis v R [2018] NSWCCA 248
Collier v R [2012] NSWCCA 213
Convery v R [2014] NSWCCA 93
De Hollander v R [2012] WASCA 127
Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301
DPP (Vic) & DPP (Cth) v Swingler [2017] VSCA 305
Franklin v R [2016] NSWCCA 319
Hancock v R [2012] NSWCCA 200
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kannis v R [2020] NSWCCA 79
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lipchin v R [2013] NSWCCA 77
Magro v R [2020] NSWCCA 25
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McIntosh v R [2015] NSWCCA 184
MRW v R [2011] NSWCCA 260
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Power v R;…

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AGLC
Waterstone v The Queen [2020] NSWCCA 117
Case
[2020] NSWCCA 117
Decision Date

CaseChat Overview and Summary

The appellant in this case was convicted of multiple sexual offences against his stepdaughter, and the appeal was against the sentence imposed by the sentencing judge. The appeal specifically focused on the absence of a non-parole period set by the judge and the lack of a single recognizance release order for Commonwealth offences. The legal issues before the court involved determining whether the sentencing judge erred in the process of imposing a fixed sentence, particularly in relation to the finding of aggravation, abuse of trust, and the objective seriousness of the offences. The court was also required to consider if the sentence was manifestly excessive.

The court examined the sentencing principles and the need for a non-parole period, noting that while the sentencing judge did not explicitly set a non-parole period, the overall sentence did implicitly include one. The court considered the abuse of trust as an aggravating factor and noted that the sentence did reflect the objective seriousness of the offences. The court held that the sentence was not manifestly excessive, as it was proportionate to the nature and circumstances of the offences committed. The court concluded that the appeal should be dismissed, affirming the sentence imposed by the sentencing judge.

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Background

Background to the litigation

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Ratio Decidendi

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