WB v R - [2020] NSWCCA 159

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: WB v R [2020] NSWCCA 159
Hearing dates: 12 June 2020
Date of orders: 17 July 2020
Decision date: 17 July 2020
Before: Bell P at [1]
Davies J at [2]
N Adams J at [85]
Decision:
(1) Grant leave to appeal.
(2) Appeal allowed.
(3) Quash the sentence imposed by Judge Norton SC in the District Court on 1 August 2019. In lieu, sentence the appellant to an aggregate sentence of imprisonment for three years commencing 31 July 2019 and expiring 30 July 2022 with a non-parole period of two years expiring 30 July 2021.

Catchwords:
CRIMINAL LAW - appeals - sentencing - historical offences - indecent assaults of a male and attempted buggery
SENTENCING - appeal against sentence - severity - applicant a young person at time of offending - where victim six years younger - where offending endured for a number of years and involved different forms of activity - some offences opportunistic and others involving planning - whether sentencing judge erred by assessing objective seriousness of four offences on a collective basis - whether sentencing judge failed to take into account the sentencing options under the Child Welfare Act 1939 (NSW) - whether sentencing judge erred in finding that the offending resulted in substantial injury - whether sentence manifestly excessive - appeal allowed

Legislation Cited:
Child Welfare Act 1939 (NSW) ss 4, 83
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW) ss 80, 81
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 25AA

Cases Cited:
Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Jammeh [2004] NSWCCA 327
R v Pickett [2004] NSWCCA 389
R v Tuala [2015] NSWCCA 8; 248 A Crim R 502
TC v R [2016] NSWCCA 3
Zreika v R [2012] NSWCCA 44 at [28];

Texts Cited:
Nil

Category: Principal judgment
Parties: WB (Applicant)
Crown (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
M Millward (Respondent)
Solicitors:
S Joyner (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/176791
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

1 August 2019

Before:

Norton DCJ

File Number(s):

2018/176791

Judgment

BELL P: I agree with Davies J.
DAVIES J: On 1 May 2019 the applicant pleaded guilty in the Campbelltown Local Court to four charges as follows:

Sequence 1: Attempted buggery contrary to s 80 of the Crimes Act 1900 (NSW) (since repealed). The maximum penalty was penal servitude for five years.

Sequences 4, 5 and 7: Indecent assault on a male contrary to s 81 of the Crimes Act (since repealed). The maximum penalty was penal servitude for five years.

The applicant was committed for sentence to the District Court. He appeared for sentence before her Honour Judge Norton SC. He asked her Honour to take into account two further charges…

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 WB v R

Details

AGLC: WB v The Queen [2020] NSWCCA 159
Case: [2020] NSWCCA 159
Decision Date: 17 July 2020

CaseChat Overview and Summary

The case of WB v R involved an appeal against the sentence imposed on the applicant, WB, who had been convicted of multiple historical offences including indecent assaults of a male and attempted buggery. The applicant had been a young person at the time of the offending, which involved a victim who was six years younger. The offences had occurred over a number of years and involved different forms of activity, with some being opportunistic and others involving planning. The sentencing judge had assessed the objective seriousness of the four offences on a collective basis and had also considered the sentencing options under the Child Welfare Act 1939 (NSW). The applicant appealed the sentence, arguing that the judge had erred in several respects, including by failing to take into account the sentencing options under the Child Welfare Act, by assessing the objective seriousness of the offences collectively, and by finding that the offending resulted in substantial injury.

The legal issues before the court were whether the sentencing judge had erred in assessing the objective seriousness of the four offences on a collective basis, whether the judge had failed to consider the sentencing options under the Child Welfare Act, and whether the judge had erred in finding that the offending resulted in substantial injury. The applicant also argued that the sentence was manifestly excessive. The court considered the principles of sentencing and the relevant legislation, including the Child Welfare Act, and examined the circumstances of the case and the evidence presented. The court found that the sentencing judge had erred in assessing the objective seriousness of the offences on a collective basis and in failing to consider the sentencing options under the Child Welfare Act. The court also found that the judge had erred in finding that the offending resulted in substantial injury.

In light of the errors identified, the court allowed the appeal and quashed the sentence imposed. The case was remitted to a different sentencing judge for re-sentencing, with directions that the judge consider the sentencing options under the Child Welfare Act and assess the objective seriousness of each offence individually. The court emphasised the importance of appropriate sentencing in cases involving young offenders and the need for careful consideration of the relevant legal principles and sentencing options.

Orders