WSP v Regina

[2006] NSWCCA 240

CITATION:	WSP v REGINA [2006] NSWCCA 240 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	3 August 2006
JUDGMENT DATE:	3 August 2006
JUDGMENT OF:	Spigelman CJ at 1, 9; Hoeben J at 7; Rothman J at 8
EX TEMPORE JUDGMENT DATE:	08/03/2006
DECISION:	Orders of Latham DJC set aside and new orders substituted.
CATCHWORDS:	SENTENCING – Back dating of original sentence by consent.
LEGISLATION CITED:	s 66C(2) Crimes Act 1900
CASES CITED:	R v WSP [2005] NSWCCA 427
PARTIES:	WSP (Applicant) Crown (Respondent)
FILE NUMBER(S):	CCA 2005/1096
COUNSEL:	M. Ramage SC (Applicant N. Noman (Crown)
SOLICITORS:	P Klees (Applicant) S Kavanagh (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/3466; 02/21/3476
LOWER COURT JUDICIAL OFFICER:	Latham DCJ
LOWER COURT DATE OF DECISION:	24/10/03

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2005/1096

SPIGELMAN CJ
HOEBEN J
ROTHMAN J

Thursday 3 August 2006

WSP v REGINA

Judgment

1 SPIGELMAN CJ: In this matter the Applicant seeks the adjustments of sentences imposed upon him by Latham DCJ, as her Honour then was. The Crown agrees that the adjustments are appropriate.

2 The circumstances are that on 24 October 2005 her Honour, after trial, sentenced the Applicant to a total sentence of eight years with an effective non-parole period of five years made up as follows:

(a) In respect of offences on a complainant called CJ in 1989:


(i) two counts of sexual intercourse under s 66C(2) to concurrent sentences of three years backdated to commence on 11 August 2003 with a non-parole period of eighteen months expiring on 11 February 2005.

(ii) two counts of aggravated indecent assault concurrent fixed terms of two years imprisonment commencing on 12 August 2003 and expiring on 11 August 2005.

(b) In respect of offences against a complainant called MK in 1995:


(i) one count of sexual intercourse under s 66C(2) to six years to commence at the expiration of the aggravated indecent assault charges in respect to CJ, that is on 12 August 2005 and expiring on 22 August 2011 with a non-parole period of three years expiring on 12 August 2008.

(ii) one count of aggravated indecent assault to a concurrent fixed term of two years.

3 On appeal to this Court WSP’s convictions and sentences in respect to the CJ matters were set aside. However, the orders with respect to the complainant MK were affirmed. (See R v WSP [2005] NSWCCA 427.)

4 On remittal to the District Court the Applicant pleaded guilty to some of the offences concerning the complainant CJ and had other offences taken into account on a Form 1. The Applicant was then sentenced on 28 July 2006 by Hosking DCJ with those sentences to commence first in time. The sentences imposed by his Honour were as follows:

1 For the first count of sexual intercourse fifteen months imprisonment to commence on 12 August 2003 and to expire on 11 November 2004.

2 For the second count of sexual intercourse fifteen months imprisonment which was made partially cumulative by directing that it commence on 12 January 2004 and expire on 11 April 2005.

5 By reason of the fact that these sentences were less than those originally imposed there remains a four month period between the expiration of those sentences and the commencement of the original sentences with respect to the complainant MK.

6 Accordingly, it is appropriate to backdate the sentences imposed by her Honour Judge Latham with respect to the complainant MK so that the gap does not appear. It is submitted on behalf of the Applicant, and the Crown agrees, that the orders of this Court should be as follows:

1 Set aside the orders of Latham DCJ of 24 October 2005 imposing sentences with respect to the complainant MK and substitute the following:


Count 1 - imprisonment for a fixed term of two years to commence on 12 April 2005 and to expire on 11 April 2007.

Count 2 - imprisonment for a period of six years to commence on 12 April 2005 and to expire on 11 April 2011 with a non-parole period of three years to commence on 12 April 2005 and to expire on 11 April 2008.

7 HOEBEN J: Yes I agree.

8 ROTHMAN J: I too agree.

9 SPIGELMAN CJ: The orders of the Court are as I have indicated.

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10/08/2006 - File number amended - Paragraph(s) Front page