R v Neal Winter [2024] NSWDC 615

District Court New South Wales

Medium Neutral Citation: R v Neal Winter [2024] NSWDC 615 Hearing dates: 15 November 2024 Date of orders: 15 November 2024 Decision date: 15 November 2024 Jurisdiction: Criminal Before: Buscombe DCJ Decision: The Offender is sentenced to an aggregated sentence of 10 years imprisonment, commencing on 28 March 2024 and expiring on 27 March 2034, with a non-parole period of 7 years, 6 months, expiring on 27 September 2031. Catchwords: SENTENCING – Sexual offences – Aggravated sexual assault - Victim has cognitive impairment Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Crimes Act 1900 (NSW) ss 61KD(1)(a), 61KJ(1), s 61J(1) Crimes (High Risk Offenders) Act (2006) (NSW) Crime (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A Cases Cited: Veen (No 2) (1988) 164 CLR 465 R v McNaughton (2006) 66 NSWLR 566 Category: Sentence Parties: ODPP (NSW) (Crown) Neal Winter (Offender) Representation: Counsel: Mr S Wilkinson (Crown) Mr M Juhasz (Offender)

Solicitors: Ms Choeli Cooper (Crown) Mr Richard Cummins (Offender) File Number(s): 2022/154023 Publication restriction: Statutory non-publication order re identity of complainant.

JUDGMENT

Introduction 1. The offender, Neal Winter, is to be sentenced having been found guilty by a jury of the following offences, all of which occurred on 26 May 2022 in a shopping mall in Bankstown: three offences of intentionally sexually touch CS without his consent and knowing that the victim was not consenting, in circumstances of aggravation, being that the victim had a cognitive impairment. Those offences were contained in counts 1, 4, and 6 on the indictment presented before the jury, and are offences under s 61KD(1)(a) of the Crimes Act 1900 (NSW). Each of those offences has a maximum penalty of seven years' imprisonment, with an applicable standard non-parole period of five years. 2. The offender is also to be sentenced in relation to two counts of sexual intercourse with the victim without the victim's consent, knowing the victim was not consenting, in a circumstance of aggravation, being that the victim had a cognitive impairment. Those offences were contained in counts 2 and 5 on the indictment and are offences under s 61J(1) of the Crimes Act. They have a maximum penalty of 20 years' imprisonment, and there is an applicable standard non-parole period of ten years. 3. The offender was found not guilty of count 3 on the indictment, which was a further allegation of sexual intercourse without consent, knowing the victim was not consenting. The allegation in relation to that count was one of penile‑anal intercourse. The jury found the offender guilty of the alternative count to count 3, being count 4. I am satisfied that the basis of the jury's not guilty verdict on count 3, given the way the case was conducted before the jury, is explicable on the basis that they were not satisfied beyond reasonable doubt that there had been actual penetration of the victim's anus by the offender's penis. 4. When I sentence the offender on count 2 of the indictment, he acknowledges his guilt in relation to an offence on a Form 1, being an offence of contravening an order under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), being an offence of loitering near premises frequented by children or where children were known to be and asks that I take that offence into account when imposing sentence on count 2. 5. When I sentence the offender on count 5 on the indictment, he acknowledges his guilt in relation to an offence of being a convicted child sex offender loitering near a public place regularly frequented by children and at which children were present at the time of the loitering, being an offence that occurred on 26 May 2022.