R v AJB

Case [2017] NSWDC 81 12 April 2017

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District Court

New South Wales

Medium Neutral Citation: R v AJB [2017] NSWDC 81
Hearing dates: 31 March 2017
Decision date: 12 April 2017
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full time custodial sentence. For Orders see [81]

Catchwords: Historical sex offending; aggregate sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999 (NSW).
Parole of Prisoners’ Act 1966 (NSW)
Probation and Parole Act 1983 (NSW)
Sentencing Act 1989 (NSW)
Cases Cited: AJB v R [2007] NSWCCA 51
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518
CT v R [2017] NSWCCA 15
Denham v R [2016] NSWCCA 309
KAB v R [2015] NSWCCA 55
Le v R [2017] NSWCCA 26
Magnuson v R [2013] NSWCCA 50
MPB v R [2013] NSWCCA 213
Pearce v R (1998) 194 CLR 610
R v ABS [2005] NSWCCA 225
R v AEM [2002] NSWCCA 58
R v BA [2014] NSWCCA 148
R v EGC [2005] NSWCCA 392
R v Gavel [2014] NSWCCA 56
R v MJR [2002] NSWCCA 129
R v Moon [2000] NSWCCA 534
R v Nelson [2016] NSWCCA 130
R v Roberts [2003] NSWCCA 309
R v Rosenstrauss [2012] NSWCCA 25
Wilson v R [2017 NSWCCA 41
Woodward v R [2017] NSWCCA 44
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Alfred James Broatch (Offender)
Representation: Counsel:
C Curtis (Crown)
M Smith (Offender)

File Number(s): 15/267458
Publication restriction: Order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 prohibiting the publication of the names of, or any information tending to identify, any of the victims herein.

REMARKS ON SENTENCE

The offender has pleaded guilty to the following offences on Indictment:

Between 1 December 1981 and 31 January 1982 at Sydney, he committed an act of indecency to a person under the age of 16 years, namely 14 years, pursuant to s 61E(2) of the Crimes Act 1900. The maximum penalty for the offence at the relevant time was a term of 2 years imprisonment.

The offender has asked that in respect of this offence, the court take into account on a Form 1, an offence pursuant to s 61E(2) of the Crimes Act, in that he did between 1 December 1981 and 31 January 1982, commit an act of indecency towards a person under the age of 16 years. The maximum penalty for the offence at the relevant time was a term of 2 years imprisonment.

Between 1 December 1981 and 31 January 1982 at Frenchs Forest, had sexual intercourse with a person under the age of 16 years, namely 11 years, without her consent and knowing she was not consenting, pursuant to s 61D(1) of the Crimes Act 1900. At the relevant time the maximum penalty was a term of 10 years imprisonment.

In respect of this offence, the offender has asked the court to take into account on a Form 1, an offence pursuant to s 76 of the

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 AJB

Details

AGLC: R v AJB [2017] NSWDC 81
Case: [2017] NSWDC 81
Decision Date: 12 April 2017

CaseChat Overview and Summary

The appellant, AJB, was charged with multiple historical sexual offences against minors, including indecent assault and rape. The matter was heard in the Supreme Court of Victoria, where AJB was convicted on all counts. The appellant subsequently appealed against the severity of the sentence imposed by the trial judge. The primary focus of the appeal was the imposition of an aggregate sentence, which the appellant argued was excessive given the nature and timing of the offences.

The central legal issue before the court was whether the trial judge had erred in imposing a full-time custodial sentence for the aggregate of the offences, considering the circumstances surrounding each offence and the appellant's criminal history. The appellant's legal team argued that the sentence was disproportionate and should have been reduced to reflect the time that had elapsed since the offences were committed and the appellant's otherwise unblemished post-offence record. The prosecution contended that the severity of the offences warranted a significant custodial sentence and that the trial judge's decision was appropriate.

In considering the appeal, the court examined the principles of sentencing for historical sexual offences and the need to balance punishment with deterrence and the protection of society. The court found that the trial judge had appropriately considered the gravity of the offences, the appellant's criminal history, and the principles of aggregate sentencing. The court concluded that the sentence was not manifestly excessive and that the trial judge's decision was within the acceptable range of outcomes for such serious offences. The appeal was therefore dismissed, and the original sentence was upheld.

The Supreme Court confirmed that the imposition of a full-time custodial sentence was appropriate given the nature and seriousness of the offences committed by the appellant. The court emphasised the importance of considering the cumulative impact of multiple historical sexual offences against minors, as well as the need to provide deterrence and protection to the community. The appellant's sentence remains as originally imposed by the trial judge.

Orders

Orders of the court

Full time custodial sentence. For Orders see [81]

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 AJB [2017] NSWDC 81

Cases Citing This Decision

No citing cases yet.

Cases Cited

Woodward v R [2017] NSWCCA 44
Citation 1 (Para 65)

…These passages were cited with approval by the Court of Criminal Appeal in Woodward v R [2017] NSWCCA 44.…
Wilson v R [2017] NSWCCA 41
Citation 2 (Para 75)

…t for his crimes during that time. Nor should the offender’s sexual offending on young victims be considered a stale crime – see Wilson v R [2017] NSWCCA 41.…
Le v R [2017] NSWCCA 26
Citation 3 (Para 71)

…In Le v R [2017] NSWCCA 26, the Court of Criminal Appeal applied the principles set out in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 , No. 1 of 2002 [2002] NSWCCA 518:…
CT v R [2017] NSWCCA 15
Citation 4 (Para 2)

…rt must impose sentences that adequately reflect the criminality of an offence regardless of when the offences were committed”, relying on CT v R [2017] NSWCCA 15 at [52].…
Denham v R [2016] NSWCCA 309
Citation 5 (Para 46)

…erm. For offences that occurred in the early 1980’s, the non-parole period was commonly one-third to one-half of the head sentence. In Denham v R [2016] NSWCCA 309, it was accepted that until 1986 the non-parole period was 35 to 50% of the total term.…
R v Nelson [2016] NSWCCA 130
Citation 6

…58 R v BA [2014] NSWCCA 148 R v EGC [2005] NSWCCA 392 R v Gavel [2014] NSWCCA 56 R v MJR [2002] NSWCCA 129 R v Moon [2000] NSWCCA 534 R v Nelson [2016] NSWCCA 130 R v Roberts [2003] NSWCCA 309 R v Rosenstrauss [2012] NSWCCA 25 Wilson v R [2017 NSWCCA 41 Woodward v R [2017] NSWCCA 44 Category: Sentence Parties: Dire…
KAB v R [2015] NSWCCA 55
Citation 7 (Para 5)

…), particularly given the vulnerability of the victim (she was 8 or 9 years and significantly less than 16 years). The Crown also relied on KAB v R [2015] NSWCCA 55, where the Court said that ejaculation into a victim’s body “is an act which adds to the degradation of the victim, and can heighten the overall seriou…
R v BA [2014] NSWCCA 148
Citation 8 (Para 53)

…child, the Crown referred the court to [25] of Hoeben CJ at CL’s judgment in CT v R , supra, where he referred to what MacCallum J said in R v BA [2014] NSWCCA 148 at [33]:…
R v Gavel [2014] NSWCCA 56
Citation 9

…213 Pearce v R (1998) 194 CLR 610 R v ABS [2005] NSWCCA 225 R v AEM [2002] NSWCCA 58 R v BA [2014] NSWCCA 148 R v EGC [2005] NSWCCA 392 R v Gavel [2014] NSWCCA 56 R v MJR [2002] NSWCCA 129 R v Moon [2000] NSWCCA 534 R v Nelson [2016] NSWCCA 130 R v Roberts [2003] NSWCCA 309 R v Rosenstrauss [2012] NSWCCA 25 Wilson…
MPB v R [2013] NSWCCA 213
Citation 10 (Para 35)

…r the range of conduct encapsulated by the statutory provision so as to determine where in the range of offences the conduct fell, relying on MPB v R [2013] NSWCCA 213. Further, pursuant to Rosenstrausser v R [2012] NSWCCA 25, the court may sentence the offender to an aggregate sentence pursuant to s 53A(1) of the C…
Magnuson v R [2013] NSWCCA 50
Citation 11 (Para 1)

…of conduct that fell within the relevant provision, and the objective gravity of the offending in question, relying on MPB v R , supra; Magnuson v R [2013] NSWCCA 50.…
Rosenstrauss v R [2012] NSWCCA 25
Citation 12 (Para 35)

…ion so as to determine where in the range of offences the conduct fell, relying on MPB v R [2013] NSWCCA 213. Further, pursuant to Rosenstrausser v R [2012] NSWCCA 25, the court may sentence the offender to an aggregate sentence pursuant to s 53A(1) of the CSPA.…
AJB v R [2007] NSWCCA 51
Citation 13 (Para 33)

…ely, between one third and one half of the term, which was a ratio consistently applied by the Court of Criminal Appeal since its judgment in AJB v R [2007] NSWCCA 51.…
R v EGC [2005] NSWCCA 392
Citation 14 (Para 64)

…or such offences have been increased by the legislature, see R v Moon [2000] NSWCCA 534 at [65] to [71]. Latham J summarised that approach in R v EGC [2005] NSWCCA 392 at [41] as follows:…
R v JJS [2005] NSWCCA 225
Citation 15 (Para 49)

…peat offending in the context of sexual offences deprived an offender of a claim for leniency that might otherwise be available, relying on R v ABS [2005] NSWCCA 225.…
R v Roberts [2003] NSWCCA 309
Citation 16 (Para 32)

…time can be established (as was the case here), then the court should approach the sentencing process in the manner set out by Howie J in R v Roberts [2003] NSWCCA 309 at [6]:…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 17 (Para 71)

…al Appeal applied the principles set out in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 , No. 1 of 2002 [2002] NSWCCA 518:…
R v MJR [2002] NSWCCA 129
Citation 18 (Para 31)

…sentencing practice as at the date of the commission of each offence, when sentencing practice has moved adversely to an offender, relying on R v MJR [2002] NSWCCA 129 at [31]. In respect of serious sexual assaults, it is generally accepted that sentencing for such offences began increasing after the decision of the…
R v AEM [2002] NSWCCA 58
Citation 19 (Para 31)

…l assaults, it is generally accepted that sentencing for such offences began increasing after the decision of the Court of Criminal Appeal in R v AEM [2002] NSWCCA 58.…
R v Moon [2000] NSWCCA 534
Citation 20 (Para 64)

…roach in sentencing for historical sex offences where over time, the penalties for such offences have been increased by the legislature, see R v Moon [2000] NSWCCA 534 at [65] to [71]. Latham J summarised that approach in R v EGC [2005] NSWCCA 392 at [41] as follows:…
Pearce v The Queen [1998] HCA 57
Citation 21

…Denham v R [2016] NSWCCA 309 KAB v R [2015] NSWCCA 55 Le v R [2017] NSWCCA 26 Magnuson v R [2013] NSWCCA 50 MPB v R [2013] NSWCCA 213 Pearce v R (1998) 194 CLR 610 R v ABS [2005] NSWCCA 225 R v AEM [2002] NSWCCA 58 R v BA [2014] NSWCCA 148 R v EGC [2005] NSWCCA 392 R v Gavel [2014] NSWCCA 56 R v MJR [2002] NSWCCA 12…
Murrell v The Queen [1985] FCA 14
Citation 22

…t the additional penalty should be small. Sometimes it will be substantial. (see e.g. The Queen v White (1981) 28 SASR 9 at 13; Murrell v The Queen [1985] FCA 14; (1985) 4 FCR 168 at 179 per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372.) … 42 The positi…

Legislation Cited

Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 30)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Parole of Prisoners Act 1966 (NSW)
1 mention (from Para 29)
Probation and Parole Act 1983 (NSW)
1 mention (from Para 29)
Sentencing Act 1989 (NSW)
1 mention (from Para 30)

Medium Neutral Citation:	R v AJB [2017] NSWDC 81
Hearing dates:	31 March 2017
Decision date:	12 April 2017
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For Orders see [81]
Catchwords:	Historical sex offending; aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 (NSW). Parole of Prisoners’ Act 1966 (NSW) Probation and Parole Act 1983 (NSW) Sentencing Act 1989 (NSW)
Cases Cited:	AJB v R [2007] NSWCCA 51 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518 CT v R [2017] NSWCCA 15 Denham v R [2016] NSWCCA 309 KAB v R [2015] NSWCCA 55 Le v R [2017] NSWCCA 26 Magnuson v R [2013] NSWCCA 50 MPB v R [2013] NSWCCA 213 Pearce v R (1998) 194 CLR 610 R v ABS [2005] NSWCCA 225 R v AEM [2002] NSWCCA 58 R v BA [2014] NSWCCA 148 R v EGC [2005] NSWCCA 392 R v Gavel [2014] NSWCCA 56 R v MJR [2002] NSWCCA 129 R v Moon [2000] NSWCCA 534 R v Nelson [2016] NSWCCA 130 R v Roberts [2003] NSWCCA 309 R v Rosenstrauss [2012] NSWCCA 25 Wilson v R [2017 NSWCCA 41 Woodward v R [2017] NSWCCA 44
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Alfred James Broatch (Offender)
Representation:	Counsel: C Curtis (Crown) M Smith (Offender)
File Number(s):	15/267458
Publication restriction:	Order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 prohibiting the publication of the names of, or any information tending to identify, any of the victims herein.