WW v The King

Case [2023] NSWCCA 311


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: WW v R [2023] NSWCCA 311
Hearing dates: 27 October 2023
Date of orders: 7 December 2023
Decision date: 07 December 2023
Before: Kirk JA at [1]
Wilson J at [2]
Fagan J at [110]
Decision:

1.   Leave to appeal against sentence granted.

2.   Appeal is dismissed.

Catchwords:

CRIME – SENTENCE – appeal against sentence – historical child sexual assaults – two victims aged about 6 to 12 years – ongoing course of conduct over a period of years – familial relationship between applicant and victims – lengthy delay between offending and prosecution – inappropriateness of grounds of appeal complaining of weight given to particular features – relevance of applicant’s reactive depression developed as a consequence of prosecution – relevance of claims by applicant of childhood abuse – no error disclosed

Legislation Cited:

Crimes Act 1900 (NSW), ss 78K, 79, 81, 81A, 578A

Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 15A(1)(b)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 33, 44(2)

Cases Cited:

Ahmad v R [2021] NSWCCA 30

Aslan v R [2014] NSWCCA 114

Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Dousha v R [2008] NSWCCA 263

Hillsley v R [2013] NSWCCA 78

Holyoak v R (1995) 82 A Crim R 502

House v The King (1936) 55 CLR 499; [1936] HCA 40

KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51

Magnuson v R [2013] NSWCCA 50

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

R v ABS [2005] NSWCCA 255

R v AGR (Court of Criminal Appeal (NSW), 24 July 1998, unrep)

R v Baker [2000] NSWCCA 85

R v Broad (Court of Criminal Appeal (NSW), 30 March 1984, unrep)

R v GDP (1991) 53 A Crim R 112

R v Smith [1964] Crim LR 70

R v Smith (1997) 26 MVR 353; (1997) 95 A Crim R 373

R v Tanudjaja [2002] NSWCCA 467

RP v The Queen (2016) 259 CLR 641; [2016] HCA 53

R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343

Tamer v R [2020] NSWCCA 333

Yang v R (2012) 219 A Crim R 550; [2012] NSWCCA 49

Zhao v R [2016] NSWCCA 199

Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Category:Principal judgment
Parties: WW (Applicant)
Rex (Respondent)
Representation:

Counsel:
L Fernandez (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Bernhaut Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2021/46591
Publication restriction: None
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
01 August 2022
Before:
English DCJ
File Number(s):
2021/46591

JUDGMENT

  1. KIRK JA: I agree with Wilson J.

  2. WILSON J: On 1 August 2022 the applicant, whose name must be anonymised in compliance with s 578A of…

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AGLC
WW v The King [2023] NSWCCA 311
Case
[2023] NSWCCA 311
Decision Date

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia against the sentence imposed on the applicant following his conviction for multiple historical child sexual assaults. The applicant was found guilty of sexually abusing two victims who were approximately 6 to 12 years old over a prolonged period. The court needed to determine if the sentence was appropriate given the nature and duration of the offences, the familial relationship between the applicant and the victims, and the considerable time elapsed between the offences and the prosecution. The appeal raised questions about the weight given to specific aspects of the case, the impact of the applicant's reactive depression stemming from the prosecution, and the relevance of the applicant's claims of childhood abuse.

The court examined whether the appeal grounds identified any errors in the sentencing process. It found that the appeal did not reveal any errors in the weight given to particular features of the case. The court considered the applicant's reactive depression and claims of childhood abuse but determined these were not relevant to the sentencing process. The court concluded that the sentence was appropriate and did not disclose any error. The court's reasoning focused on the need to balance the severity of the crimes, the impact on the victims, and the appropriate response to historical offences that had been prosecuted after a significant delay.

Based on its findings, the court dismissed the appeal. The High Court upheld the sentence imposed by the lower court, confirming that the sentence was appropriate given the circumstances of the case. The court's decision emphasised the importance of considering the severity and impact of the crimes, the nature of the relationship between the offender and the victims, and the appropriate response to historical offences that had been prosecuted after a significant delay. The court found no basis to interfere with the sentence, affirming the lower court's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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