R v A

Case [2021] NSWDC 232 21 May 2021

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v A [2021] NSWDC 232
Hearing dates: 07, 08, 09, 10, 11 and 15 December 2020 5 April 2021 and 7 May 2021
Crown written submissions 11 March 2021 and 5 May 2021
Defence written submissions 1 April and 27 April 2021
Date of orders: 21 May 2021
Decision date: 21 May 2021
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
See [84] onwards

Catchwords:
CRIMINAL LAW –– Child sex offence – Maintaining an unlawful sexual relationship with a child
SENTENCE –– Aggravating factors – Offence committed in position of trust and vulnerability of victims considered – Mitigating factors – No prior convictions – Prior good character – Offender’s moral culpability reduced in line with the principles in R v Bugmy – Offender’s time in custody is more onerous due to his mental and physical health – Offender at low risk of reoffending and has good prospect of rehabilitation notwithstanding his denial of offending – Finding of special circumstances by reasons of the Offender’s health and favourable prospects of rehabilitation
SENTENCE –– Where the interpretation of section 66EA of the Crimes Act 1900 (NSW) is distinguishable from that found for in section 50 of the Criminal Law Consolidation Act 1935 (SA) in Chiro v R [2017] HCA 37

Legislation Cited:
Crimes Act 1900 (NSW), ss 66EA, 66C, 61M, 66D
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30, 21A, 44
Criminal Law Consolidation Act 1935 (SA), s 50

Cases Cited:
ARS v R [2011] NSWCCA 266
R v D [1997] SASC 6350
R v Fitzgerald (2004) 59 NSWLR 493.
Chiro v R [2017] HCA 37.
KMC v Director of Public Prosecutions(SA) [2020] HCA 6.
Burr v R [2020] NSWCCA 282
Corby v R [2010] NSWCCA 146
R v KLN (2005) 154 A Crim R 268
R v Kennedy [2000] NSWCCA 527
Bugmy v R [2013] HCA 37; 249 CLR 571
R v Fernando (1992) 76 A Crim R 58
R v Perkins [2018] NSWCCA 62
Judge v R [2018] NSWCCA 203
R v Millwood [2012] NSWCCA 2
Alseedi v R [2009] NSWCCA 185
Ali v R [2010] NSWCCA 35
Qutecher v the Queen [2010] NSWCCA 257
Park v R [2010] NSWCCA 151
MLP v R [2014] NSWCCA 183

Category: Sentence
Parties: Regina (the Crown)
A (the Offender)
Representation:
Counsel:
Ms J. Krippner (the Crown)
Ms P. David (the Offender)
Solicitors:
Director of Public Prosecutions (the Crown)
O’Brien Criminal & Civil Solicitors Pty Ltd (the Offender)

File Number(s): 2019/00212671
Publication restriction: Section 578A(2) of the Crimes Act 1900 (NSW) and
Section 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) apply. Pseudonym “A” is used for the Offender and “S” is used for the Offender’s niece.

Judgment

Following a six day trial concluding on 14 December 2020, the Offender was found guilty by a jury of 11 of one count that he did between 1 June 2015 and 30 November 2018, at Taree in the State of New…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v A

Details

AGLC: R v A [2021] NSWDC 232
Case: [2021] NSWDC 232
Decision Date: 21 May 2021

CaseChat Overview and Summary

The case of R v A involved the appellant who was convicted of maintaining an unlawful sexual relationship with a child. The dispute was heard and decided by the court of appeal. The appellant was sentenced under the Crimes Act 1900 (NSW) and the matter was brought before the court on appeal against the sentence imposed. The central legal issues the court was required to decide related to the appropriate weight to be given to various aggravating and mitigating factors in sentencing, particularly in light of the principles articulated in R v Bugmy. The court also needed to consider whether the sentencing principles applied by the lower court correctly reflected the unique circumstances of the offender, including his health issues and prospects for rehabilitation.

In delivering its judgment, the court examined the sentencing principles and the weight given to aggravating and mitigating factors. The court noted that the trial judge had appropriately considered the offender's position of trust and the vulnerability of the victims as significant aggravating factors. However, the court found that the trial judge had not sufficiently considered the offender's mental and physical health and the low risk of reoffending as mitigating factors. The court held that the offender's time in custody was more onerous due to his health conditions and that his prospects of rehabilitation were favourable despite his denial of the offence. The court also found that the offender's moral culpability was reduced in accordance with the principles set out in R v Bugmy. Furthermore, the court distinguished the interpretation of section 66EA of the Crimes Act 1900 (NSW) from the interpretation of section 50 of the Criminal Law Consolidation Act 1935 (SA) as applied in Chiro v R.

The court concluded that the sentence imposed by the trial judge was excessive and ordered a reduction in the sentence, taking into account the special circumstances of the offender's health and prospects for rehabilitation. The court provided detailed reasons for the reduction in sentence, ensuring that the overall punishment remained proportionate to the gravity of the offence while considering all relevant factors. The final orders of the court, as outlined from paragraph [84] onwards, detailed the specific adjustments to the sentence and the reasons for those adjustments.

Orders

Orders of the court

See [84] onwards

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v A [2021] NSWDC 232

Most Recent Citation

R v Daw (No. 3) [2021] NSWDC 383

Cases Citing This Decision

R v Rose [2022] NSWDC 705
Citation 1 (Para 98)

…R v A [2021] NSWDC 232 concerned an offender who was approximately 55 years of age when he commenced an unlawful sexual relationship with the victim who was a child of 11 years of age. The offender was the great uncle of the victim being an uncle of her maternal aunt. He was involved in training the victim and her…
R v Daw (No. 3) [2021] NSWDC 383
Citation 2 (Para 13)

…s of all ingredient offences are other decisions in this Court, being R v RW (District Court (NSW), 1 April 2021, Gartelmann SC DCJ, unrep) and R v A [2021] NSWDC 232 (Hatzistergos DCJ).…

See all citing cases →

Cases Cited

R v Fitzgerald [2021] NZHC 2940
Citation 1 (Para 23)

…jury when returning a guilty verdict as to which two acts were established beyond reasonable doubt. 32. [2011] NSWCCA 266. 33. [1997] SASC 6350. 34. (2004) 59 NSWLR 493. 35. [2020] HCA 6.…
Hillman v R [2021] NSWCCA 43
Citation 2 (Para 44)

…my attention to a list used by the primary judge the subject of an appeal in Hillman v R [50] the contents of which was not relevantly disputed. 50. [2021] NSWCCA 43 at [22].…
Ellis v The Queen [2020] NSWCCA 303
Citation 3 (Para 71)

…ldhood deprivation is such that that it must be given weight in sentencing by reducing the Offender’s moral culpability. [62] 62. See Ellis v R [2020] NSWCCA 303 at [36].…
Burr v R [2020] NSWCCA 282
Citation 4 (Para 22)

…ndments may be different based as it is upon an “unlawful sexual relationship” as defined in s 66EA(2) but it was unnecessary to decide. [31] 30. [2020] NSWCCA 282. 31. at [104] (Leeming JA and Rothman J agreeing).…
KMC v Director of Public Prosecutions (SA) [2020] HCA 6
Citation 5 (Para 23)

…ilty verdict as to which two acts were established beyond reasonable doubt. 32. [2011] NSWCCA 266. 33. [1997] SASC 6350. 34. (2004) 59 NSWLR 493. 35. [2020] HCA 6.…
Judge v R [2018] NSWCCA 203
Citation 6

…27 Bugmy v R [2013] HCA 37; 249 CLR 571 R v Fernando (1992) 76 A Crim R 58 R v Perkins [2018] NSWCCA 62 Judge v R [2018] NSWCCA 203 R v Millwood [2012] NSWCCA 2 Alseedi v R [2009] NSWCCA 185 Ali v R [2010] NSWCCA 35 Qutecher v the Queen [2010] NSWCCA 257 Park v R [2010] NSWCCA 151 MLP v R [2014] NSWCCA 183 Category:…
Perkins v R [2018] NSWCCA 62
Citation 7

…R v Kennedy [2000] NSWCCA 527 Bugmy v R [2013] HCA 37; 249 CLR 571 R v Fernando (1992) 76 A Crim R 58 R v Perkins [2018] NSWCCA 62 Judge v R [2018] NSWCCA 203 R v Millwood [2012] NSWCCA 2 Alseedi v R [2009] NSWCCA 185 Ali v R [2010] NSWCCA 35 Qutecher v the Queen [2010] NSWCCA 257 Park v R [2010] NSWCCA 151 MLP v R…
Chiro v The Queen [2017] HCA 37
Citation 8 (Para 21)

…sentenced on the basis of committing the threshold number of offences said to constitute the offence; not all of the particularised acts. [29] 28. [2017] HCA 37 and (2017) 260 CLR 425. 29. Chiro v the Queen [2017] HCA 37; (2017) 260 CLR 425 at [52] (Keifel CJ, Keane and Nettle JJ) and Bell J at [67], [71]-72].…
MLP v R [2014] NSWCCA 183
Citation 9 (Para 79)

…e J (with McClellan CJ at CL and Latham J agreeing); Park v R [2010] NSWCCA 151 at [61] McClelland CJ at CL (James and RothmanJJ agreeing): MLP v R [2014] NSWCCA 183 at [34]; Bellew J (with Macfarlan JA and Adamson J agreeing).…
Bugmy v The Queen [2013] HCA 37
Citation 10 (Para 67)

…dance with the principles in Bugmy v R. [58] The Crown challenged this essentially on the basis that there was no evidence of a causative link. 58. [2013] HCA 37; 249 CLR 571.…
R v Millwood [2012] NSWCCA 2
Citation 11

…CLR 571 R v Fernando (1992) 76 A Crim R 58 R v Perkins [2018] NSWCCA 62 Judge v R [2018] NSWCCA 203 R v Millwood [2012] NSWCCA 2 Alseedi v R [2009] NSWCCA 185 Ali v R [2010] NSWCCA 35 Qutecher v the Queen [2010] NSWCCA 257 Park v R [2010] NSWCCA 151 MLP v R [2014] NSWCCA 183 Category: Sentence Parties: Regina (th…
ARS v R [2011] NSWCCA 266
Citation 12 (Para 23)

…s no capacity to seek identification from the jury when returning a guilty verdict as to which two acts were established beyond reasonable doubt. 32. [2011] NSWCCA 266. 33. [1997] SASC 6350. 34. (2004) 59 NSWLR 493. 35. [2020] HCA 6.…
Quetcher v The Queen [2010] NSWCCA 257
Citation 13 (Para 79)

…(Mccallum and Hidden JJ agreeing); Ali v R [2010] NSWCCA 35 at [47]-[48] Johnson J (McClelland CJ at CL and Hulme J agreeing); Qutecher v the Queen [2010] NSWCCA 257 at [25] Price J (with McClellan CJ at CL and Latham J agreeing); Park v R [2010] NSWCCA 151 at [61] McClelland CJ at CL (James and RothmanJJ agreeing):…
Park v R [2010] NSWCCA 151
Citation 14 (Para 79)

…nd CJ at CL and Hulme J agreeing); Qutecher v the Queen [2010] NSWCCA 257 at [25] Price J (with McClellan CJ at CL and Latham J agreeing); Park v R [2010] NSWCCA 151 at [61] McClelland CJ at CL (James and RothmanJJ agreeing): MLP v R [2014] NSWCCA 183 at [34]; Bellew J (with Macfarlan JA and Adamson J agreeing).…
Corby v R [2010] NSWCCA 146
Citation 15 (Para 5)

…The assaults did not involve cruel, humiliating or degrading acts. 51. Corby v R [2010] NSWCCA 146 at [72], [78] and [81]. 52. R v KLN (2005) 154 A Crim R 268 at [43].…
Ali v R [2010] NSWCCA 35
Citation 16 (Para 79)

…on notwithstanding his denial of offending. [64] 64. Alseedi v R [2009] NSWCCA 185 at [64]-[65] Giles JA (Mccallum and Hidden JJ agreeing); Ali v R [2010] NSWCCA 35 at [47]-[48] Johnson J (McClelland CJ at CL and Hulme J agreeing); Qutecher v the Queen [2010] NSWCCA 257 at [25] Price J (with McClellan CJ at CL and…
Alseedi v R [2009] NSWCCA 185
Citation 17 (Para 79)

…e overall there is a low risk of reoffending and has good prospects of rehabilitation notwithstanding his denial of offending. [64] 64. Alseedi v R [2009] NSWCCA 185 at [64]-[65] Giles JA (Mccallum and Hidden JJ agreeing); Ali v R [2010] NSWCCA 35 at [47]-[48] Johnson J (McClelland CJ at CL and Hulme J agreeing); Qu…
R v Kennedy [2000] NSWCCA 527
Citation 18 (Para 62)

…weight that I can give to that good character, I bear in mind the comments of Howie J in R v Kennedy [55] and give this matter limited weight. 55. [2000] NSWCCA 527 at [22].…

Legislation Cited

Crimes Act 1900 (ACT) 61M, 66C, 66D, 66EA
5 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW) 21A, 30, 44
3 mentions
Criminal Law Consolidation Act 1935 (SA) 50
2 mentions (from Para 23)

Medium Neutral Citation:	R v A [2021] NSWDC 232
Hearing dates:	07, 08, 09, 10, 11 and 15 December 2020 5 April 2021 and 7 May 2021 Crown written submissions 11 March 2021 and 5 May 2021 Defence written submissions 1 April and 27 April 2021
Date of orders:	21 May 2021
Decision date:	21 May 2021
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	See [84] onwards
Catchwords:	CRIMINAL LAW –– Child sex offence – Maintaining an unlawful sexual relationship with a child SENTENCE –– Aggravating factors – Offence committed in position of trust and vulnerability of victims considered – Mitigating factors – No prior convictions – Prior good character – Offender’s moral culpability reduced in line with the principles in R v Bugmy – Offender’s time in custody is more onerous due to his mental and physical health – Offender at low risk of reoffending and has good prospect of rehabilitation notwithstanding his denial of offending – Finding of special circumstances by reasons of the Offender’s health and favourable prospects of rehabilitation SENTENCE –– Where the interpretation of section 66EA of the Crimes Act 1900 (NSW) is distinguishable from that found for in section 50 of the Criminal Law Consolidation Act 1935 (SA) in Chiro v R [2017] HCA 37
Legislation Cited:	Crimes Act 1900 (NSW), ss 66EA, 66C, 61M, 66D Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30, 21A, 44 Criminal Law Consolidation Act 1935 (SA), s 50
Cases Cited:	ARS v R [2011] NSWCCA 266 R v D [1997] SASC 6350 R v Fitzgerald (2004) 59 NSWLR 493. Chiro v R [2017] HCA 37. KMC v Director of Public Prosecutions(SA) [2020] HCA 6. Burr v R [2020] NSWCCA 282 Corby v R [2010] NSWCCA 146 R v KLN (2005) 154 A Crim R 268 R v Kennedy [2000] NSWCCA 527 Bugmy v R [2013] HCA 37; 249 CLR 571 R v Fernando (1992) 76 A Crim R 58 R v Perkins [2018] NSWCCA 62 Judge v R [2018] NSWCCA 203 R v Millwood [2012] NSWCCA 2 Alseedi v R [2009] NSWCCA 185 Ali v R [2010] NSWCCA 35 Qutecher v the Queen [2010] NSWCCA 257 Park v R [2010] NSWCCA 151 MLP v R [2014] NSWCCA 183
Category:	Sentence
Parties:	Regina (the Crown) A (the Offender)
Representation:	Counsel: Ms J. Krippner (the Crown) Ms P. David (the Offender) Solicitors: Director of Public Prosecutions (the Crown) O’Brien Criminal & Civil Solicitors Pty Ltd (the Offender)
File Number(s):	2019/00212671
Publication restriction:	Section 578A(2) of the Crimes Act 1900 (NSW) and Section 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) apply. Pseudonym “A” is used for the Offender and “S” is used for the Offender’s niece.