WG v The Queen - [2019] NSWCCA 263

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: WG v R [2019] NSWCCA 263
Hearing dates: 23 October 2019
Date of orders: 31 October 2019
Decision date: 31 October 2019
Before: Hoeben CJ at CL at [1]
Walton J at [2]
Price J at [63]
Decision:
(1) Leave is granted to bring the appeal out of time;

(2) Leave to appeal granted;
(3) Appeal dismissed.
Catchwords: CRIMINAL LAW – appeal – sentence – medical conditions – loss of employment – protective custody – grounds of appeal without merit
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Greenwood v R [2014] NSWCCA 64
Miller v R [2015] NSWCCA 86
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Principal judgment
Parties: WG (Applicant)
Regina (Respondent)
Representation:
Counsel:
B Baker (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/163455
Publication restriction: Statutory prohibition on publication in relation to identities of the complainants under s 578A of the Crimes Act 1900 (NSW); Non-publication order in relation to the name of the applicant.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

9 November 2017

Before:

Judge Wells SC

File Number(s):

2016/163455

Judgment

HOEBEN CJ AT CL: I agree with Walton J and the orders which he proposes.
WALTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act1912 (NSW) to appeal against sentence imposed upon him on 9 November 2017 in the District Court at Coffs Harbour by her Honour Judge Wells SC.
The applicant was sentenced to an aggregate sentence of 5 years and 7 months imprisonment with a non-parole period of 3 years and 6 months for 11 sexual offences against the three daughters, JP, SS and HP, of his then partner, namely:

10 offences of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900 (NSW), which at the relevant time attracted a maximum penalty of 7 years imprisonment; and

1 offence of aggravated act of indecency with a person under the age of 16 years (under authority) contrary to s 61O(1) of the Crimes Act, which at the relevant time attracted a maximum penalty of 5 years imprisonment.

No standard non-parole periods were applicable to those offences.
Nine additional offences of aggravated indecent assault under s 61M(1) of the Crimes Act (with a maximum penalty of 7 years imprisonment) were taken into account on Form 1 documents pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The sentencing judge applied a 25% discount for the utilitarian value of the applicant's early pleas of guilty and imposed indicative sentences for each of the 11 offences which are reflected in a table helpfully prepared by Ms B Baker, who appeared for the respondent, as follows:

Sequence

Offence

Indicative Sentence

Complainant JP

H266876194

/6

Aggravated indecent assault (under the age of 16 years namely, 14 years)

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 WG v The Queen

Details

AGLC: WG v The Queen [2019] NSWCCA 263
Case: [2019] NSWCCA 263
Decision Date: 31 October 2019

CaseChat Overview and Summary

The case of WG v The Queen involved an appeal against sentence by the defendant, WG, following his conviction for various criminal offences. The appeal was heard by the High Court of Australia, which had jurisdiction to review the severity of the sentence imposed by the lower court. The central issue in this appeal was whether the trial judge had appropriately taken into account WG's medical conditions, loss of employment, and the need for protective custody when determining the appropriate penalty. The appeal raised questions about the extent to which mitigating factors should influence sentencing decisions in criminal cases.

The court considered whether the trial judge had erred in not adequately weighing WG's medical conditions and the loss of employment when imposing the sentence. It also examined if the need for protective custody should have been given more significant consideration. The court needed to determine if these factors warranted a lesser penalty, and whether the trial judge had failed to properly balance these mitigating circumstances against the gravity of the crimes committed. The appeal further challenged whether the trial judge had appropriately exercised judicial discretion in sentencing.

The High Court found that the trial judge had properly considered the mitigating factors presented by WG, including his medical conditions, loss of employment, and need for protective custody. The court held that there was no error in the way these factors were weighed against the seriousness of the offences. It concluded that the sentence imposed was appropriate and that the appeal was without merit. The court emphasised the importance of judicial discretion in sentencing, and that the trial judge had correctly exercised that discretion in this case. The appeal was dismissed, and the original sentence was upheld.

Orders