Citation: R v Wright [2019] NSWDC 544
Court: District Court of New South Wales
Date: 11 October 2019
Judge(s): Lerve DCJ
Background
Following a three-day jury trial at Wagga Wagga District Court, the offender was convicted on three counts arising from events on 9 March 2017 at West Wyalong. The offender had attended a birthday gathering at a friend's house two doors from the victim, and followed the victim home after she offered him a cigarette.
Once the victim went inside her house to use the toilet, the offender entered uninvited through a closed but unlocked door. He then physically restrained the victim, choked her several times around the throat, made threatening and degrading remarks, and committed an indecent assault by placing his hand inside her clothing and touching her vagina.
The jury convicted the offender of: aggravated entry into a dwelling with intent to commit a serious indictable offence (s 111(2) Crimes Act 1900); attempted choking with intent to commit an indictable offence (ss 37(2) and 344A(1) Crimes Act 1900); and indecent assault (s 61L Crimes Act 1900). The jury acquitted on the more serious charge of sexual intercourse without consent, having found it could not be satisfied beyond reasonable doubt that penetration had occurred. Because the offender pleaded not guilty and exercised his right to trial, no discount for a guilty plea applied.
Legal Issues
- What were the correct findings of fact, given the offender's partial disputes about the circumstances?
- How should each offence be assessed for seriousness, and where within the relevant range did each fall?
- Was a finding of special circumstances justified to extend the balance of term beyond the standard one-third proportion?
- Was an aggregate sentence appropriate, and if so, what total term and non-parole period were warranted?
Decision
Lerve DCJ conducted a thorough review of the trial transcript to make independent findings of fact, given the offender's objection to the Crown's version of events. Consistent with the jury's verdicts, the court found beyond reasonable doubt that the offender had exposed his penis to the victim on her porch, entered the house without permission, choked the victim repeatedly, and committed the indecent assault as described by the victim.
On the question of seriousness, the court assessed count 1 (aggravated entry with intent) as below mid-range, noting the entry was through an unlocked door and was not an elaborate intrusion. The court assessed count 2 (attempted choking) with reference to the Court of Criminal Appeal's decision in R v MW [2007] NSWCCA 291, which confirmed that the offence encompasses varying degrees of criminality. The court noted the choking here, while not rendering the victim unconscious, was nonetheless accompanied by threatening words, physical restraint, and a direct attempt to facilitate a sexual assault. The indecent assault in count 3 involved skin-on-skin contact in circumstances of significant physical force and lasted approximately one minute.
The court found special circumstances warranted, principally because the offender required substantial support for reintegration into the community and intensive assistance with substance abuse issues upon release. The court also noted the offender was on parole at the time of the offending, which was a relevant aggravating factor. A sentence of imprisonment was the only appropriate outcome given the seriousness of the conduct and the applicable maximum penalties, particularly the 25-year maximum for the choking offence.
The court imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, recording the individual sentences it would otherwise have imposed as three years, six years, and two years respectively for counts 1, 2, and 3.
Orders Made
- The offender was convicted on all three counts on which the jury returned guilty verdicts.
- An aggregate sentence of 7 years and 3 months was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999.
- Non-parole period: 5 years, commencing 22 December 2017 and expiring 21 December 2022.
- Balance of term (parole): commencing 22 December 2022 and expiring 21 March 2025.
- The non-parole period represents approximately 70% of the total sentence, reflecting a finding of special circumstances.
- The court recommended the offender's release to parole upon expiration of the non-parole period.
Key Takeaways
- Where a jury returns a guilty verdict after a contested trial, the sentencing judge may make independent findings of fact from the trial transcript, particularly where the offender disputes the Crown's summary of facts.
- No guilty plea discount applies where an offender proceeds to trial; equally, a sentencing judge must make clear that no additional penalty is imposed merely because the offender exercised the right to require the Crown to prove its case.
- Under s 37(2) of the Crimes Act 1900, attempted choking with intent to commit an indictable offence carries a maximum of 25 years and encompasses a wide range of criminal conduct, with severity assessed by reference to the degree of physical harm caused and the accompanying circumstances.
- Special circumstances justifying a non-parole period representing more than two-thirds of the total sentence can arise from a combination of factors including the need for structured reintegration support and treatment for substance abuse.
- The District Court confirmed that being on parole at the time of offending remains a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999, relevant to the overall sentencing assessment.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 37(2), 61L, 111(2), 344A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(2)(eb), 53A
Cases:
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- R v Holder [1983] 3 NSWLR 245
- R v HQ [2003] NSWCCA 336
- MAK & MSK v R (2006) 167 A Crim R 159
- R v MW [2007] NSWCCA 291