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District Court 18 December 2024

R v WIDDISON

[2024] NSWDC 601

Sexual offences
CRIME SENTENCING TRIAL VERDICT OF GUILTY ON ONE COURT OFFENCE OCCURRED IN THE VICTIM’S HOME BUGMY FACTORS

Citation: R v Widdison [2024] NSWDC 601
Court: District Court of New South Wales
Date: 18 December 2024
Judge: Lerve DCJ

Background

The offender stood trial in the Wagga Wagga District Court in September 2024 on three counts, two of sexual touching and one of sexual intercourse without consent. The jury acquitted him on the first two counts but convicted him on the third, finding that he had sexual intercourse with the complainant on 8 March 2023 at her home in Ashmont without her consent and knowing she was not consenting.

The offender and the complainant had met by chance at their children's school. He attended her home the following morning under the pretence of lawn maintenance. The complainant's case was that she said "no" approximately twenty times before the offender proceeded to have sexual intercourse with her, ejaculating internally, after which he left.

Five days after the offence, the complainant covertly recorded a conversation with the offender. In that recording she asked how many times she had said no, and he replied "heaps." This recording became central to the sentencing judge's findings of fact.

  • What facts could the sentencing judge find proved beyond reasonable doubt, given the mixed jury verdicts and the parties' disagreement about portions of the Crown's draft facts?
  • What was the appropriate level of objective seriousness of the offence?
  • What weight should be given to subjective factors, including the offender's background, age, and first time in custody (Bugmy considerations)?
  • Whether special circumstances existed to justify a non-parole period below the statutory default ratio.

Decision

Lerve DCJ addressed the approach to fact-finding at sentence following a trial, applying the principle from The Queen v Olbrich that facts adverse to an offender must be established beyond reasonable doubt, while facts favourable to an offender need only be proved on the balance of probabilities. The judge noted that the jury's acquittals on the sexual touching counts were likely explained by the absence of the same degree of corroboration that existed for count 3. The covert recording provided substantial corroboration for the complainant's account of the sexual intercourse count and formed the basis for the sentencing facts.

On the facts established, the judge found beyond reasonable doubt that the victim said "no" multiple times, that the offender acknowledged this in the recording, and that the offence occurred in the victim's home. The offence in a victim's home constitutes a statutory aggravating factor under the relevant legislation. The Crown submitted the matter was more serious than mid-range, while defence counsel argued it sat somewhat below the mid-range. The judge's reasons acknowledge this contested characterisation but do not resolve it in explicit terms in the extracted portions of the judgment.

The judge found special circumstances warranting a departure from the standard non-parole period ratio. Relevant factors included the offender's age, the fact that this was his first time in custody, and the recommendations in a report by Dr Calvin regarding the need for both support during custody and assistance with reintegration into the community on release. No discount for a guilty plea was available given the matter proceeded to trial and ended in a conviction.

Orders Made

  • The offender was convicted of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900.
  • Non-parole period of 2 years and 3 months, commencing 13 September 2024 and expiring 12 December 2026.
  • Balance of term on parole of 18 months, commencing 13 December 2026 and expiring 12 June 2028 (total sentence of 3 years and 9 months).
  • Special circumstances found; the non-parole period was set at 60% of the total sentence.
  • The court recommended the offender be released to parole at the expiration of the non-parole period.
  • A copy of Dr Calvin's report was directed to be forwarded to the Department of Corrective Services.

Key Takeaways

  • A covert recording made by a complainant, in which the offender acknowledged the complainant had said "no" "heaps" of times, provided the evidentiary foundation for the sentencing judge's findings of fact, illustrating how post-offence admissions can anchor findings that might otherwise be contested.
  • Where jury verdicts are mixed, the sentencing court must adopt facts consistent with the verdicts and cannot find facts adverse to the offender unless established beyond reasonable doubt, applying the principles in Olbrich and Cheung.
  • The occurrence of the offence in the victim's home constituted a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999.
  • Special circumstances were established by reference to a combination of factors: the offender's age, his first period of incarceration, and the identified need for support both in custody and on reintegration, resulting in a non-parole period set at 60% rather than the standard 71.4%.
  • No plea discount applied following a trial conviction; the District Court confirmed this does not operate as an increase in penalty but simply removes a mitigating factor otherwise available.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent; maximum penalty 14 years; standard non-parole period 7 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases
- Bugmy v The Queen [2013] HCA 37
- Cheung v The Queen [2001] HCA 67; 209 CLR 1
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Lloyd v R [2022] NSWCCA 18
- R v Hassenein Naderi [2022] NSWDC 534
- R v McMahon [2021] NSWDC 437
- R v Tuala [2015] NSWCCA 8
- Stein v R [2023] NSWCCA 324
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54