R v LW [2021] NSWDC 233

District Court New South Wales

Medium Neutral Citation: R v LW [2021] NSWDC 233 Hearing dates: 30 April 2021 Date of orders: 4 June 2021 Decision date: 04 June 2021 Jurisdiction: Criminal Before: Lerve DCJ Decision: Sentenced to an aggregate term of imprisonment – see paragraphs [72] – [77] Catchwords: CRIME – sentencing – aggravated sexual intercourse without consent – breach of ADVO – no hierarchy of sexual offences – genuine remorse Legislation Cited: Crimes Act, 1900 Criminal Procedure Act, 1986 Crimes (Domestic and Personal Violence) Act, 2007 Crimes (Sentencing Procedure) Act, 1999 Cases Cited: Bugmy v The Queen [2013] HCA 37 Jolly v R [2013] NSWCCA 76 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v Tuala [2015] NSWCCA 8 Category: Sentence Parties: Regina LW (the Offender) Representation: Counsel: Mr M Pincott for the Crown Ms C Mendes for the Offender File Number(s): 2020/19753 Publication restriction: No publication of the name of the complainant or anything that may tend to identify them.

Judgment 1. The offender appeared before a Magistrate at the Wagga Wagga Local Court on 14 October 2020 and pleaded guilty to two substantive matters on H281049997, namely: 1. Sequence 3: That (he) on 16 January 2020 at Glenfield Park in the State of New South Wales did have sexual intercourse with [the victim] without her consent and knowing that she was not consenting to the sexual intercourse in circumstances of aggravation (namely) that at the time of the offence [the victim] was under the authority of LW by reason of LW being the biological father of [the victim], contrary to s 61J of the Crimes Act, 1900; and further 2. Sequence 4: That (he) on 16 January 2020 at Glenfield Park in the State of New South Wales did have sexual intercourse with [the victim] without her consent and knowing that she was not consenting to the sexual intercourse in circumstances of aggravation (namely) that at the time of the offence [the victim] was under the authority of LW by reason of LW being the biological father of [the victim], contrary to s 61J of the Crimes Act, 1900. 1. Both offences arise out of the one ongoing episode of conduct. 2. It is uncontroversial that the offender pleaded guilty at an early opportunity and that he is entitled to the full 25% discount for the utilitarian value of the plea of guilty. 3. The maximum penalty for each of the substantive offences to which the offender has pleaded guilty is 20 years imprisonment. Parliament has specified a standard non-parole period of 10 years in respect of each of the offences. 4. In addition, attaching to a Form 1 is one charge of what is shortly known as Sexual Touching, contrary to s 61KB(1)(a) of the Crimes Act. There is attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986 a charge of what is shortly known as Contravene Domestic Violence Order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act, 2007. The offender pleaded guilty to this charge. I indicated at the sentence hearing that I would deal with the matter attaching to the s 166 Certificate pursuant to s 10A of the Crimes (Sentencing Procedure) Act, 1999. Neither counsel dissented from that suggestion. The Sexual Touching offence on the Form 1 was part of the ongoing course of conduct and occurred immediately before the first of the two substantive matters for which the offender appears for sentence.