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District Court 7 November 2025

R v WS

[2025] NSWDC 463

Sexual offencesAssault & violenceDomestic & family violence

Citation: R v WS [2025] NSWDC 463
Court: District Court of New South Wales
Date: 7 November 2025
Judge: Fitzsimmons SC DCJ

Background

The offender and the victim were in a domestic relationship, having met online in April 2021. The victim moved into the offender's home by early July 2021, coinciding with the discovery of her pregnancy. The relationship involved a consensual dominant-submissive dynamic, within which the parties had agreed to certain sexual practices, including limited choking during intercourse.

The offending occurred between May 2021 and March 2022. It included incidents where the offender choked the victim to the point of unconsciousness and then had sexual intercourse with her while she was incapacitated, as well as separate incidents involving threats made with a hot iron, sexual intercourse without consent on multiple other occasions, and an incident involving a weapon.

Following a jury trial at the District Court at Wollongong, the offender was convicted of a range of offences. The Court subsequently dealt with seven additional offences proven on a section 166 certificate (a mechanism by which the court, rather than a jury, determines guilt on related charges not tried before the jury).

  • What were the objective circumstances and seriousness of each offence, given the consensual elements of the relationship alongside the clearly non-consensual conduct?
  • How should the existence of a consensual "consent/no-consent" sexual dynamic bear on sentencing for non-consensual offending?
  • What aggravating factors applied, including the presence of an infant, commission of offences in the victim's home, and use of weapons?
  • What subjective factors were relevant to the offender's sentence, including age, psychological profile, and criminal history?
  • How should the totality principle be applied to structure an aggregate sentence across 15 offences committed against a single victim over an extended period?

Decision

Objective seriousness and context. Fitzsimmons SC DCJ made detailed findings as to each offence. The Court accepted that the parties' relationship included agreed sexual practices, but was unequivocal that the victim had clearly communicated she did not consent to being choked to the point of unconsciousness. The choking that caused the victim to lose consciousness and the sexual intercourse that followed while she was insensible were treated as serious offending, not mitigated by the surrounding consensual dynamic.

Aggravating factors. The Court identified several statutory aggravating factors under the Crimes (Sentencing Procedure) Act 1999. These included the commission of some offences in the presence of the parties' infant, the use of or arming with a weapon, and the fact that some offending occurred in the victim's home. The judgment confirms that the "victim's home" aggravating factor can apply even where the offender also resided at that address, on the basis that the home is a place where the victim is entitled to feel safe.

Subjective factors. The offender was 49 years old at the time of offending and had a prior criminal history. A psychological report was tendered on his behalf. The Court considered these matters but did not find them sufficient to significantly moderate the sentence in light of the gravity and pattern of the offending.

Totality and structure of sentence. Applying the totality principle, the Court noted that a lengthy aggregate sentence must not operate so as to be crushing or to destroy any realistic expectation of a useful life post-release. Citing R v MAK; R v MSK and RA v R [2024] NSWCCA 149, the Court acknowledged that the severity of imprisonment increases at a non-linear rate as its length grows. Given that the offending involved a single victim across an extended period with some factual commonality, a degree of concurrency was built into the aggregate sentence alongside necessary accumulation.

Orders Made

  • The offender is convicted of all offences (including those on the section 166 certificate).
  • For sequences 1, 3, and 9 (three of the section 166 offences), the offender is convicted without the imposition of any further penalty pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999.
  • The offender is sentenced to an aggregate term of imprisonment of 10 years, commencing 21 June 2025 and expiring 20 June 2035.
  • A non-parole period of 6 years and 3 months is imposed, expiring 20 September 2031. The earliest date the offender is eligible for release on parole is 20 September 2031.
  • ADVO orders were also made (terms redacted from the published judgment).

Key Takeaways

  • The existence of a consensual dominant-submissive sexual dynamic in a relationship does not reduce the objective seriousness of sexual offending that falls outside the scope of what the victim agreed to. The Court treated the victim's clearly communicated limits as determinative.
  • Under the Crimes (Sentencing Procedure) Act 1999, the "victim's home" aggravating factor can be established even where the offender also lives at the same address. The principle is that the home is a place where the victim has a right to feel safe, irrespective of the offender's own occupancy.
  • A section 166 certificate allows a District Court to find additional related charges proven beyond reasonable doubt without a jury trial. Convictions entered on that basis are treated as substantive convictions for sentencing purposes.
  • Applying the totality principle across 15 offences against a single victim, the District Court structured the aggregate sentence to reflect genuine accumulation while building in concurrency, so that the overall penalty remained proportionate to the total criminality rather than mechanically cumulative.
  • Where an offender faces a lengthy aggregate sentence, sentencing courts must guard against a term so severe as to be "crushing" or to extinguish any realistic prospect of rehabilitation, consistent with the principles affirmed in R v MAK; R v MSK and RA v R [2024] NSWCCA 149.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 37(1), 61, 61I, 114(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 54A, 54B

Cases:
- Alseedi v R [2009] NSWCCA 185
- Biddle v The Queen [2017] NSWCCA 128
- DC v R [2023] NSWCCA 82
- Director of Public Prosecutions (NSW) v Darcy-Shillingsworth (2017) 269 A Crim R 40
- Hall v R [2021] NSWCCA 220
- Hesketh v R [2021] NSWCCA 262
- Jonson v R [2016] NSWCCA 286
- R v Brown [2023] NSWDC 477
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- R v Olbrich (1999) 199 CLR 270
- R v Storey [1998] 1 VR 359
- RA v R [2024] NSWCCA 149