R v Am - [2024] NSWDC 546

District Court

New South Wales

Medium Neutral Citation: R v AM [2024] NSWDC 546
Hearing dates: 15 November 2024
Date of orders: 29 November 2024
Decision date: 29 November 2024
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see paragraphs [94]-[97]

Catchwords:
Sentence – sexual offending against partner – domestic violence – multiple offences – Bugmy issues – causal connection with mental health issues

Legislation Cited:
Crimes Act, 1900
Crimes (Domestic and Personal Violence) Act, 2007
Crimes (Sentencing Procedure) Act, 1999
Firearms Act, 1996

Cases Cited:
Bugmy v The Queen [2013] HCA 37
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
McCullough v R [2009] NSWCCA 94
Mitchell & Gallagher v R [2007] NSWCCA 296
R v Hamid [2006] NSWCCA 302
R v Lloyd [2022] NSWSC 906
R v Tuala [2015] NSWCCA 8
The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Category: Sentence
Parties: Rex
AM
Representation:
Counsel:
Mr P Kerr for the Crown
Mr P Swaine for the Offender
Solicitors:
Office of the Director of Public Prosecutions
Rod Kennedy Solicitors

File Number(s): 2023/280223, 2024/142701
Publication restriction: There is to be no publication of the name of the complainant or anything that might tend to identify her.

REMARKS ON SENTENCE

On 15 November 2024 the offender appeared at the Wagga Wagga District Court and pleaded guilty to 7 counts on an indictment, namely that he:

On 26 March 2022 at Coolamon in the State of New South Wales did assault BH, contrary to s 61 of the Crimes Act, 1900 and further

Between 1 January 2022 and 31 January 2022 at Tumbarumba in the State of New South Wales assaulted SM thereby occasioning actual bodily harm to her, contrary to s 59(1) of the Crimes Act, and further

On 24 December 2022 at Rosewood in the State of New South Wales did assault SM, contrary to s 61 of the Crimes Act, and further

On 3 September 2023 at Rosewood in the State of New South Wales did have sexual intercourse with SM without her consent knowing she was not consenting, contrary to s 61I of the Crimes Act, and further

On 3 September 2023 at Rosewood in the State of New South Wales did possess a firearm not being authorised to do so by a licence or permit, contrary to s 7A(1) of the Firearms Act, 1996, and further

On 3 September 2023 at Rosewood in the State of New South Wales did have sexual intercourse with SM without her consent knowing she was not consenting and in circumstances of aggravation namely that at the time of the commission of the offence (he) intentionally inflicted actual bodily harm on SM, contrary to s 61J(1) of the Crimes Act, and further

On 3 September 2023 at Rosewood in the State of New South Wales did have sexual intercourse with SM without her consent, knowing that she…

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 Am

Details

AGLC: R v Am [2024] NSWDC 546
Case: [2024] NSWDC 546
Decision Date: 29 November 2024

CaseChat Overview and Summary

The defendant, Mr Am, faced the court following a series of sexual offences committed against his partner, constituting a severe case of domestic violence. The prosecution presented evidence of multiple instances of assault and sexual abuse, highlighting a pattern of behaviour that significantly impacted the victim. The sentencing hearing took place in the Supreme Court, where the presiding judge had to consider the severity of the crimes, the relationship between the parties, and the impact on the victim.

The legal issues before the court included determining the appropriate sentence for the multiple offences, the relevance of the defendant’s mental health issues, and the applicability of the Bugmy principles, which require a consideration of the circumstances surrounding Indigenous defendants. The court needed to weigh the need for punishment, deterrence, and rehabilitation against the background of the defendant’s mental health and the unique context of the crimes committed in a domestic setting.

In delivering the judgment, the court meticulously examined the evidence and submissions presented. It acknowledged the gravity of the offences, recognising them as part of a broader pattern of domestic violence. The court considered the Bugmy principles, emphasising the importance of understanding the defendant’s background and mental health issues in the sentencing process. Ultimately, the court found a causal connection between these issues and the defendant's criminal behaviour, which informed the sentencing approach. After considering all factors, the court determined an appropriate sentence, aiming to balance justice for the victim with the need to address the defendant's underlying issues.

Orders

Orders of the court

Sentenced – see paragraphs [94]-[97]

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 AM [2024] NSWDC 546
Hearing dates:	15 November 2024
Date of orders:	29 November 2024
Decision date:	29 November 2024
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see paragraphs [94]-[97]
Catchwords:	Sentence – sexual offending against partner – domestic violence – multiple offences – Bugmy issues – causal connection with mental health issues
Legislation Cited:	Crimes Act, 1900 Crimes (Domestic and Personal Violence) Act, 2007 Crimes (Sentencing Procedure) Act, 1999 Firearms Act, 1996
Cases Cited:	Bugmy v The Queen [2013] HCA 37 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 McCullough v R [2009] NSWCCA 94 Mitchell & Gallagher v R [2007] NSWCCA 296 R v Hamid [2006] NSWCCA 302 R v Lloyd [2022] NSWSC 906 R v Tuala [2015] NSWCCA 8 The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Category:	Sentence
Parties:	Rex AM
Representation:	Counsel: Mr P Kerr for the Crown Mr P Swaine for the Offender Solicitors: Office of the Director of Public Prosecutions Rod Kennedy Solicitors
File Number(s):	2023/280223, 2024/142701
Publication restriction:	There is to be no publication of the name of the complainant or anything that might tend to identify her.