R v AF - [2016] NSWDC 439

District Court

New South Wales

Medium Neutral Citation: R v AF [2016] NSWDC 439
Hearing dates: 4 February 2016
Date of orders: 04 February 2016
Decision date: 04 February 2016
Jurisdiction: Criminal
Before: Berman SC DCJ
Decision:
The offender is sentenced to an aggregate term of imprisonment consisting of a non-parole period of 2½ years and a head sentence of 5 years.

Catchwords: CRIMINAL LAW – Sentence – Form 1 – Sexual intercourse with a child under 10 – Aggravation – Complainant under the authority of offender – Offender a child at time of offending – Voluntary cessation of offending.
Legislation Cited: Children (Criminal Proceedings) Act
Cases Cited: RM [2015] NSWCCA 4
KBM [2004] NSWCCA 123.
Category: Sentence
Parties: The Crown
AF
Representation:
Counsel:
B Costello – The Crown
P Krisenthal – the offender
Solicitors:
The Director of Public Prosecutions – The Crown

File Number(s): 2014/320726
Publication restriction: There is to be no publication of the name of the complainant and of any material which may tend to identify the complainant and that is to include the name of the offender.

Judgment

HIS HONOUR: The criminal justice system exists primarily to protect the community and its members. Among its members are people of varying vulnerability. Children are in a special category, as they are, by definition, vulnerable. They are vulnerable to exploitation, in particular by those who seek to use them for the purposes of sexual gratification. The consequences of such misconduct can be, and ordinarily are, devastating for the unfortunate victim.
For that reason, the sentences imposed on those who sexually abuse children, in particular children under the age of ten, are some of the heaviest sentences imposed in New South Wales courts.
In this case the consequences for the victim of a series of sexual assaults committed by her older cousin have been very eloquently expressed in her victim impact statement, prepared with the help of a counsellor. Quite accurately, she said that the offences have “affected me in every way”,: her school work; her relationships with her family; and her friendships with boys. In every way the unfortunate victim of the offender’s crime has been affected and will continue to be affected for years to come.
The offender, AF, is to be sentenced on four offences. Three are allegations of sexual intercourse with a child under ten and one is the aggravated form of that offence, aggravated by the circumstances that at the time of the offence the complainant was under his authority. In two cases there are matters on a Form 1 to be taken into account. They are two other offences of sexual intercourse with a child under ten.
Parliament has set very high maximum penalties for offences of this type, life imprisonment for the aggravated sexual intercourse with a person under the age of ten, and 25 years’ imprisonment for the un-aggravated form of the offence. Parliament has also introduced standard non-parole periods.
I turn, however, to the offender himself. He was a…

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 AF

Details

AGLC: R v AF [2016] NSWDC 439
Case: [2016] NSWDC 439
Decision Date: 04 February 2016

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the respondent, AF, who was convicted of sexual intercourse with a child under 10 years of age. The matter was heard in the Supreme Court of New South Wales. The appeal focused on the sentence imposed by the primary judge, who had found the offence to be aggravated due to the complainant being under the authority of the offender and the offender being a child at the time of the offending. The primary judge had also taken into account the voluntary cessation of the offending.

The legal issues before the court were whether the sentence was manifestly excessive or inadequate. The court was required to consider the aggravating factors of the case, including the age of the complainant and the authority relationship, as well as the mitigating factor of the offender's voluntary cessation of the offending. The court was also required to consider the principles of sentencing for offences of this nature and the need to balance the competing considerations of punishment, deterrence, and rehabilitation.

The court held that the sentence was manifestly excessive. The primary judge had given insufficient weight to the mitigating factor of the voluntary cessation of the offending, and had not adequately considered the offender's age and vulnerability as a child at the time of the offending. The court held that the sentence should have been reduced to reflect these considerations. The court remitted the matter to the primary judge to re-sentence the offender, with directions to give appropriate weight to the mitigating factor of voluntary cessation and to consider the offender's age and vulnerability.

The court ordered that the offender be re-sentenced to an aggregate term of imprisonment consisting of a non-parole period of 2½ years and a head sentence of 5 years. The offender was to be given credit for time already served in custody.

Orders

Orders of the court

The offender is sentenced to an aggregate term of imprisonment consisting of a non-parole period of 2½ years and a head sentence of 5 years.

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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Medium Neutral Citation:	R v AF [2016] NSWDC 439
Hearing dates:	4 February 2016
Date of orders:	04 February 2016
Decision date:	04 February 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to an aggregate term of imprisonment consisting of a non-parole period of 2½ years and a head sentence of 5 years.
Catchwords:	CRIMINAL LAW – Sentence – Form 1 – Sexual intercourse with a child under 10 – Aggravation – Complainant under the authority of offender – Offender a child at time of offending – Voluntary cessation of offending.
Legislation Cited:	Children (Criminal Proceedings) Act
Cases Cited:	RM [2015] NSWCCA 4 KBM [2004] NSWCCA 123.
Category:	Sentence
Parties:	The Crown AF
Representation:	Counsel: B Costello – The Crown P Krisenthal – the offender Solicitors: The Director of Public Prosecutions – The Crown
File Number(s):	2014/320726
Publication restriction:	There is to be no publication of the name of the complainant and of any material which may tend to identify the complainant and that is to include the name of the offender.