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WS v The King

WS v The King

Case [2023] NSWCCA 52 17 March 2023

Appeal

Sentencing

Breach of Trust

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: WS v R [2023] NSWCCA 52
Hearing dates: 5 October 2022
Date of orders: 17 March 2023
Decision date: 17 March 2023
Before: Beech-Jones CJ at CL at [1]
Davies J at [52]
Hamill J at [53]
Decision:
(1)   Refuse leave to raise ground 1 of the appeal against conviction;
(2)   The appeal against conviction be dismissed;
(3)   Grant the applicant leave to appeal against the sentence imposed on him by the District Court on 28 August 2020;
(4)   The appeal against sentence be dismissed.

Catchwords:
CRIME – appeals – appeal against conviction –– applicant convicted of 16 sexual offences against three children over a period of 17 years – complainants aged between five and 15 years – complainants respectively applicant’s stepdaughter, niece and former partner’s younger sister – trial judge directed jury that it could use complaints as evidence of facts asserted, independent of evidence given by complainants in the witness box – point not raised below – whether trial judge erred in referring to complaint evidence as “independent” – trial judge qualified direction on complaint evidence by the fact that if a person says something on more than one occasion that does not mean that what is said is necessarily true or accurate – no miscarriage
SENTENCING – appeal against sentence – severity – whether sentence manifestly excessive – applicant sentenced to 21 years’ imprisonment with non-parole period of 14 years and six months – for 16 sexual offences against three children over a period of 17 years – complainants aged between five and 15 years – complainants respectively applicant’s stepdaughter, niece and former partner’s younger sister – whether aggregate sentence properly reflected the total criminality of the applicant’s conduct – where applicant used his position in a family to prey upon three vulnerable young people – where applicant’s depraved conduct had a profound impact on complainants – where accumulation of indicative sentences could potentially give rise to more severe aggregate sentence

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW), s 136

Cases Cited:
Aryal v R [2021] NSWCCA 2
BS v R [2021] NSWCCA 39
Kassab (a pseudonym) v R [2021] NSWCCA 46
Lee v R [2020] NSWCCA 244
Long (a pseudonym) v R [2021] NSWCCA 212
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
SB v R [2020] NSWCCA 207
R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: WS (Applicant)
Crown (Respondent)
Representation:
Counsel:
Ms S Kluss (Applicant)
Ms S Traynor (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/204223, 2018/387896, 2019/94397
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 August 2020

Before:

Woodburne SC DCJ

File Number(s):

2017/204223, 2018/387896, 2019/94397

HEADNOTE

[This headnote is not…

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 WS v The King

Details

AGLC: WS v The King [2023] NSWCCA 52
Case: [2023] NSWCCA 52
Decision Date: 17 March 2023

CaseChat Overview and Summary

The case of WS v The King involved a conviction and subsequent appeal concerning 16 sexual offences committed against three children over a period of 17 years. The victims, aged between five and 15 years, were the applicant’s stepdaughter, niece, and the younger sister of his former partner. The appeal primarily focused on two issues: the trial judge’s direction to the jury regarding the use of complaint evidence as independent evidence and the severity of the sentence imposed.

The legal issues addressed by the court were whether the trial judge erred in referring to complaint evidence as "independent" and whether the sentence was manifestly excessive. The trial judge had directed the jury that the complaints could be considered as evidence of facts asserted, independent of the evidence given by the complainants in the witness box. The applicant argued that this direction was erroneous, but this point was not raised during the trial. Additionally, the applicant challenged the severity of the sentence, which was 21 years’ imprisonment with a non-parole period of 14 years and six months, arguing it did not properly reflect the totality of the applicant’s conduct.

The court found that the trial judge’s direction to the jury, while potentially misleading, did not result in a miscarriage of justice. The judge had also clarified that the repetition of a statement by a person did not necessarily make it true or accurate. Regarding the sentence, the court considered the applicant’s position of trust, the vulnerability of the victims, and the profound impact of his conduct. It held that the aggregate sentence appropriately reflected the total criminality of the applicant’s conduct.

The court dismissed the appeal against conviction and sentence, maintaining the original sentence. The reasoning underscored the importance of the trial judge's qualification and the proportionality of the sentence in relation to the gravity of the offences.

Orders