WS v R [2023] NSWCCA 52

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)