WM v R

Case [2020] NSWCCA 96 12 May 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: WM v R [2020] NSWCCA 96
Hearing dates: 20 April 2020
Date of orders: 12 May 2020
Decision date: 12 May 2020
Before: Johnson J at [1]
Adamson J at [2]
Bellew J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords:
CRIMINAL LAW – Sentence – Appeal – Sexual intercourse with child under 10 – Where applicant was the father of the victim who was 9 months old – Whether sentencing judge erred in weighing applicant’s breach of trust – Necessity for parity principle – Whether applicant had a justifiable sense of grievance in light of sentence imposed on a co-offender – Where sentencing judge properly took into account similarities and differences in the cases of the applicant and the co-offender – No unjustified disparity in the sentences imposed – Sentence not manifestly excessive – Appeal dismissed
WORDS AND PHRASES – “breach of trust” – “under the authority”
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De la Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Director of Public Prosecutions v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41
Goodbun v R [2020] NSWCCA 77
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Lowe v the Queen (1984) 154 CLR 606; [1984] HCA 46
MLP v R [2014] NSWCCA 183
MRW v R [2011] NSWCCA 260
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Postiglione v the Queen (1997) 189 CLR 295; [1997] HCA 26
R v Baker [2000] NSWCCA 85
RLS v R [2012] NSWCCA 236
Ryan v R [2009] NSWCCA 183
Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215
Category: Principal judgment
Parties: WM – Applicant
Regina – Respondent
Representation:
Counsel:
C McGorey – Applicant
G Newton – Respondent
Solicitors:
Ryan and Payten – Applicant
Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2016/198247
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

11 May 2018

Before:

His Honour Judge Lakatos SC

Judgment

JOHNSON J: I agree with Bellew J.
ADAMSON J: I agree with Bellew J.
BELLEW J: WM (the applicant) pleaded guilty in the District Court to the following offences:

On 19 April 2015, did have sexual intercourse with [ER], a person less than 10 years of age, namely about 9 months old, in circumstances of aggravation, namely, at the time of the sexual intercourse [ER] was under the authority of WM (Count 1).

On 19 April 2015, did have sexual intercourse with [ER] a person less than 10 years of…

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 WM v R

Details

AGLC: WM v R [2020] NSWCCA 96
Case: [2020] NSWCCA 96
Decision Date: 12 May 2020

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia in WM v R. The applicant, WM, sought to appeal the sentence imposed for engaging in sexual intercourse with a child under 10 years of age. The victim was WM's own child, who was 9 months old at the time of the offence. WM's appeal focused on the sentencing judge's handling of the breach of trust and the imposition of the sentence in relation to a co-offender. The legal issues before the court were whether the sentencing judge correctly assessed the breach of trust, if the parity principle was appropriately applied, and whether WM's sense of grievance was justified given the sentence imposed on the co-offender.

The court considered that the sentencing judge correctly identified the breach of trust inherent in WM's role as a father and person of authority over the victim. The judge weighed this breach of trust in determining the appropriate sentence. The court also found that the parity principle, which seeks to ensure similar sentences for similar crimes, was correctly applied. The judge took into account the similarities and differences in the cases of WM and the co-offender, ensuring the sentences were proportionate and not manifestly excessive. The court determined that WM's sense of grievance was not justified because the sentence reflected the severity of the crime and the breach of trust.

The High Court held that the sentencing judge did not err in assessing the breach of trust, applying the parity principle, or in the overall sentence imposed. The court found that the sentence was not manifestly excessive and dismissed the appeal. The judgment underscored the importance of considering the unique circumstances of each case and the specific nature of the breach of trust when sentencing for such offences.

Orders