R v WS [2021] NSWDC 135

District Court New South Wales

Medium Neutral Citation: R v WS [2021] NSWDC 135 Hearing dates: 12 March 2021 Date of orders: 1 April 2021 Decision date: 01 April 2021 Jurisdiction: Criminal Before: R. J. Weber SC DCJ Decision: (1) The offender is sentenced to a term of imprisonment of 4 years and 3 months, with a non-parole period of 2 years and 6 months. (2) The Court directs that such a term of imprisonment shall commence on 1 April 2021 and that the non-parole period shall expire on 30 September 2023, with the balance to expire on 30 June 2025. Catchwords: CRIMES — Child sex offences — Indecent assault — Sexual intercourse without consent — historic offences SENTENCING — Sentencing procedure — Disputed facts — Findings of fact – Question as to the age of the victim on the date of the offences – Where the date range of indictment encompassed periods at which the victim was 15 years of age and 16 years of age – Where different maximum penalties were available depending on the victim's age under the now repealed s 61D(1) – The date range on indictment are particulars, not elements – no finding to be attributed to the jury – the evidence establishes the date of the offences beyond reasonable doubt SENTENCING — Sentencing procedure — Disputed facts — Findings of fact at sentence – Uncharged sexual acts not proven beyond reasonable doubt – Where the use of a knife is an integral part of the res gestae and therefore attributable to the jury's finding of guilt beyond reasonable doubt SENTENCING — Aggravating factors — Use of weapon — Mitigating factors — No record of previous convictions — Prior good character — Not part of a planned or organised criminal activity — Unlikely to re-offend — Subjective considerations on sentence — Special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Dimian v R [2016] NSWCCA 223 at [49] Gregg v The Queen [2020] NSWCCA 245 at [395] Keung v The Queen [2008] NSWCCA 193 at [25]-[31] Markarian v The Queen (2005) 228 CLR 357 at [51] R v Isaacs (1997) 41 NSWLR 374 at [377]-[378] R v Lilley (2004) 150 A Crim R 591 at [41], [53] R v King (2004) 150 A Crim R 409 at [139]-[141] R v Olbrich (1999) CLR 270 at [27]-[28] R v Wickham [2004] NSWCCA 193 Saffron v The Queen (1988) 17 NSWLR 395 Savvas v The Queen (1995) 183 CLR 1 at [8] The Queen v Meaton (1986) 160 CLR 359 at p 367 Category: Sentence Parties: Regina (Crown) WS (Offender) Representation: Counsel: Ms M Curry (Crown) Mr P Doyle (Offender)