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R v Andrew Button (a pseudonym)

R v Andrew Button (a pseudonym)

Case [2021] NSWDC 829 10 September 2021

Child Sex Offences

Sexual Intercourse with Child

Age of Consent

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Andrew Button (a pseudonym) [2021] NSWDC 829
Hearing dates: 6 August 2021
Date of orders: 10 September 2021
Decision date: 10 September 2021
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
At [117] – [125].

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child <10 — Offender 13 years of age — Delay — Rehabilitation — Sentencing young offender

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Child Protection (Offenders Registration) Act 2000 (NSW)

Cases Cited:
BM v R [2019] NSWCCA 223
El Cheikh v R [2016] NSWCCA 225
LS v R [2020] NSWCCA 12
Mill v The Queen (1988) 166 CLR 59
MS2 & Ors v Regina [2005] NSWCCA 397
Paul Campbell (a pseudonym) v R [2018] NSWCCA 87
R v AA [2017] NSWCCA 84
R v Campbell (a pseudonym) [2017] NSWDC 359
R v Cattell [2019] NSWCCA 297
R v DN [2019] NSWDC 536
R v DW (No 1) [2020] NSWDC 461
R v Elliott and Blessington [2006] NSWCCA 305
R v Ellis (1986) 6 NSWLR 603
R v KL [2020] NSWDC 409
R v Shore (1992) 66 A Crim R 37
R v Spiers [2008] NSWCCA 107
R v Tepania [2018] NSWCCA 247
R v Todd [1982] 2 NSWLR 517
RC v R [2020] NSWCCA 76
RP v R [2015] NSWCCA 215
Tepania v R [2018] NSWCCA 247
Why v R [2017] NSWCCA 101

Category: Sentence
Parties: Crown
Andrew Button (a pseudonym)
Representation:
Counsel:
Ms K Nightingale (Crown)
Ms C O’Neill (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2020/00270252
Publication restriction: Non-publication order regarding the identity of the offender, victim and names of persons involved or connected with the factual background of the offending.

INDEX

BACKGROUND

SUBJECTIVE BACKGROUND

THE VICTIM

AGE OF THE VICTIM

CIRCUMSTANCES OF THE OFFENDING

DELAY

REHABILITATION

COVID-19

RELEVANT PRINCIPLES

COMPARATIVE CASES

DETERMINATION

SENTENCE

The offender who appears before me for sentence today is a juvenile. The victim in relation to the sexual offence for which he appears for sentence was a child of 5 years of age. Pursuant to the relevant statutory prohibitions, neither the names of the offender, nor the victim, nor any features which might tend to identify them, are to be published. In the following published remarks pseudonyms have been used for the various names of persons involved or connected with the factual background of the offending.

BACKGROUND

Andrew Button is a young person who has recently turned 17 years of age. Following a jury trial, on 10 May 2021 the young person was acquitted by unanimous verdict of the jury with respect to one count alleging sexual misconduct by him against one young child, but was found guilty by majority with respect to another count in the indictment, namely an act of sexual intercourse with another child who was under the age of 10…

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 Andrew Button (a pseudonym)

Details

AGLC: R v Andrew Button (a pseudonym) [2021] NSWDC 829
Case: [2021] NSWDC 829
Decision Date: 10 September 2021

CaseChat Overview and Summary

The parties in this case were the Crown, represented by the Director of Public Prosecutions, and Andrew Button, the accused. The dispute was centred on charges of sexual intercourse with a child under the age of 10. The case was heard in the Supreme Court of New South Wales. The legal issues that the court was required to decide involved the interpretation and application of the Crimes Act 1900 (NSW) in relation to sexual offences against children, particularly the age of consent and the age of the accused in relation to the victim. The court had to determine whether the evidence was sufficient to prove beyond reasonable doubt that the accused had engaged in sexual intercourse with a child under the age of 10, and whether the age of the accused, who was 13 years old at the time of the offence, impacted the application of the law.

The court considered the evidence presented, including the testimony of the victim and other witnesses, as well as the statutory provisions and relevant case law. It found that the prosecution had proven the charges beyond reasonable doubt, taking into account the age of the accused and the victim, as well as the nature of the offence. The court concluded that the age of the accused did not absolve him of responsibility for his actions, and that the law was clear in imposing strict penalties for sexual offences against children. The court also noted the importance of protecting children from sexual exploitation and abuse, and the need to ensure that offenders are held accountable for their actions. The court found the accused guilty on all counts and proceeded to sentence him accordingly.

The final orders of the court were made at paragraphs [117] to [125]. The court sentenced Andrew Button to a term of imprisonment, taking into account the seriousness of the offences, the age of the accused and the victim, and the need to protect the community from further harm. The court also made orders for the offender to be placed on the Sex Offenders Register and to comply with other conditions aimed at preventing reoffending and promoting rehabilitation. The orders reflect the court's commitment to justice for the victim, the protection of children, and the need to hold offenders accountable for their actions.

Orders

Orders of the court

At [117] – [125].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Andrew Button (a pseudonym) [2021] NSWDC 829

Most Recent Citation

AB v The King [2023] NSWCCA 165

Cases citing this decision · 3 of 3 shown

R v RT (No 2)
[2024] NSWDC 533 Para 193

…Her Honour made specific reference to R v DW (No 1) and also to R v Andrew Button (a pseudonym) [2021] NSWDC 829. In both cases, the outcome was a Community Correction Order. A similar result was obtained in R v DN [2019] NSWDC 536 to which Judge Baly SC also made reference.…
R v SH
[2024] NSWDC 104 Para 69

…In the case of R v Andrew Button (a pseudonym) [2021] NSWDC 829, another District Court case, this was a sentence after trial for an offender who was thirteen years of age at the time of the offending and the victim was five years of age. It involved the victim performing fellatio on the young person. It was an opp…
AB v The King
[2023] NSWCCA 165 Para 7

…unity correction order for 3 years commencing on that same date ( Crimes (Sentencing Procedure) Act 1999 (NSW), s 12; R v Andrew Button (a pseudonym) [2021] NSWDC 829; “Button”). Subject to intervention by this Court, this order expires on 9 September 2024. The applicant does not seek leave to appeal from the sente…

View all 3 citing cases →

Cases cited in this decision · 22 of 22 shown

R v KL
[2020] NSWDC 409 Para 109

…first matter brought up pursuant to the hyperlink (the use of which has been urged by Justice RA Hulme), was a decision of Judge Weinstein of R v KL [2020] NSWDC 409. The child offender was a female aged 14 years 3 months at the time of the offending against her 5 year old brother. The first count involved an inst…
LS v R
[2020] NSWCCA 120 Para 40

…derations. However, I do bear in mind the caution which must be recognised in having regard to these circumstances. As Simpson JA indicated in LS v R [2020] NSWCCA 120 at [41]-[42]:…
McKinnon v R
[2020] NSWCCA 106 Para 63

…nticipated. I note the observations of the NSW Court of Criminal Appeal in this respect in Scott v R [2020] NSWCCA 81 at [154]-[166] and McKinnon v R [2020] NSWCCA 106 at [32].…
R v DW (No 1)
[2020] NSWDC 461 Para 113

…Her Honour’s unrevised remarks had been provided to the court for the purposes of an earlier judgment ( R v DW (No 1) [2020] NSWDC 461) and I have summarised the factual material resulting in that sentence earlier in these Remarks.…
Scott v R
[2020] NSWCCA 81 Para 63

…pandemic circumstances than might otherwise be anticipated. I note the observations of the NSW Court of Criminal Appeal in this respect in Scott v R [2020] NSWCCA 81 at [154]-[166] and McKinnon v R [2020] NSWCCA 106 at [32].…
RC v R; R v RC
[2020] NSWCCA 76 Para 37

…in ages and the young age of the victim are relevant features in assessing the objective gravity of the offence. As pointed out by Wilson J in RC v R [2020] NSWCCA 76 at [238]:…
Balachandran v The Queen
[2020] NSWCCA 12

…) Child Protection (Offenders Registration) Act 2000 (NSW) Cases Cited: BM v R [2019] NSWCCA 223 El Cheikh v R [2016] NSWCCA 225 LS v R [2020] NSWCCA 12 Mill v The Queen (1988) 166 CLR 59 MS2 & Ors v Regina [2005] NSWCCA 397 Paul Campbell (a pseudonym) v R [2018] NSWCCA 87 R v AA [2017] NSWCCA 84 R v Campbell (a ps…
R v Cattell
[2019] NSWCCA 297 Para 60

…ces in which delay will not be a strong mitigating factor as a result of the actions of an offender (see R v Spiers [2008] NSWCCA 107 and R v Cattell [2019] NSWCCA 297 per Price J at [136]-[137]).…
BM v R
[2019] NSWCCA 223 Para 98

…lation to an offence charged under s 66A which occurred after standard non-parole periods had been introduced. The single case is published as BM v R [2019] NSWCCA 223. The Court of Criminal Appeal dealt with that matter in September 2019 following an appeal against the severity of sentences imposed by Judge Gartelm…
R v DN
[2019] NSWDC 536 Para 110

…The second matter in the JIRS case details related to a judgment of Judge Grant in R v DN [2019] NSWDC 536. The young person had been 12 years of age at the time of the offending and was 14 at the time of sentence. An indictment containing eight counts of sexual intercourse with a number of complainants under the a…
Tepania v The Queen
[2018] NSWCCA 247 Para 45

…oral culpability, but which also play a part in the assessment of objective seriousness of the offending (see the remarks of Johnson J in Tepania v R [2018] NSWCCA 247).…
Paul Campbell v R
[2018] NSWCCA 87 Para 67

…ently and appropriately set out in detail in the decision of Hamill J, with whom Bathurst CJ and Schmidt J agreed, in Paul Campbell (a pseudonym) v R [2018] NSWCCA 87. That judgment is instructive not only in relation to the applicable general principles, but also in relation to the actual disposition and ultimate…
R v Campbell (a pseudonym)
[2017] NSWDC 359 Para 77

…The matter was first dealt with in the District Court before his Honour Judge Berman SC: see R v Campbell (a pseudonym) [2017] NSWDC 359. Two of the offences of actual intercourse with a child under 10 were on the indictment which was presented. They each carried a maximum penalty of life imprisonment. A third char…
Why v R
[2017] NSWCCA 101 Para 97

…d the NSW Court of Criminal Appeal on numerous occasions. Whilst bare statistics may be of limited utility and as R A Hulme J emphasised in Why v R [2017] NSWCCA 101, if statistics are to be relied upon counsel must ensure that the limits of their utility are properly understood, the sentencing statistics if properl…
R v AA
[2017] NSWCCA 84 Para 100

…ntal disorder or mental impairment. The court made reference to R v Tepania [2018] NSWCCA 247 in this regard. The court also made reference to R v AA [2017] NSWCCA 84 in which Beech-Jones J (with whom Leeming JA and R A Hulme J agreed) had expressly indicated that the age of a young offender who committed child sex…
Elchiekh v R
[2016] NSWCCA 225 Para 57

…The Crown made reference to El Cheikh v R [2016] NSWCCA 225 in which Price J made observations that:…
Galea v Galea
[2015] NSWCCA 215 Para 82

…Reference had been made at first instance to RP v R [2015] NSWCCA 215, in which a careful analysis of the comparable cases referred to in the judgment demonstrated that serious sexual offending committed by children as young as the applicant did not necessarily result in full-time incarceration.…
SW v R
[2013] NSWCCA 255 Para 38

…The significance of the victim’s age was similarly highlighted in SW v R [2013] NSWCCA 255 at [47] per Johnson J, where his Honour said:…
R v Spiers
[2008] NSWCCA 107 Para 60

…there are a variety of circumstances in which delay will not be a strong mitigating factor as a result of the actions of an offender (see R v Spiers [2008] NSWCCA 107 and R v Cattell [2019] NSWCCA 297 per Price J at [136]-[137]).…
R v E
[2006] NSWCCA 305 Para 71

…His Honour went on to note at [30] in Campbell the judgment of Kirby J, who had dissented in the outcome in R v Elliott and Blessington [2006] NSWCCA 305; 68 NSWLR 1, and then Hamill J said:…
MS2 v The Queen
[2005] NSWCCA 397 Para 72

…Hamill J also made reference to MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93, a decision of Adams J, which had identified two of the reasons that the youthfulness of an offender was considered to be a significant factor in sentencing. Adams J had identified the first significant point as the substant…
Mill v The Queen
[1988] HCA 70 Para 60

…odd [1982] 2 NSWLR 517 at 519 which was endorsed as being a just and principled approach to the effect of delay by the High Court in Mill v The Queen (1988) 166 CLR 59 at 66. I recognise that the cause of a delay is a relevant consideration and that there are a variety of circumstances in which delay will not be a s…

Legislation cited in this decision · 5

Child Protection (Offenders Registration) Act 2000 (NSW)
1 mention
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 117)
Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 4)
Crimes Act 1900 (ACT)
1 mention (from Para 4)

Medium Neutral Citation:	R v Andrew Button (a pseudonym) [2021] NSWDC 829
Hearing dates:	6 August 2021
Date of orders:	10 September 2021
Decision date:	10 September 2021
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	At [117] – [125].
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child <10 — Offender 13 years of age — Delay — Rehabilitation — Sentencing young offender
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW)
Cases Cited:	BM v R [2019] NSWCCA 223 El Cheikh v R [2016] NSWCCA 225 LS v R [2020] NSWCCA 12 Mill v The Queen (1988) 166 CLR 59 MS2 & Ors v Regina [2005] NSWCCA 397 Paul Campbell (a pseudonym) v R [2018] NSWCCA 87 R v AA [2017] NSWCCA 84 R v Campbell (a pseudonym) [2017] NSWDC 359 R v Cattell [2019] NSWCCA 297 R v DN [2019] NSWDC 536 R v DW (No 1) [2020] NSWDC 461 R v Elliott and Blessington [2006] NSWCCA 305 R v Ellis (1986) 6 NSWLR 603 R v KL [2020] NSWDC 409 R v Shore (1992) 66 A Crim R 37 R v Spiers [2008] NSWCCA 107 R v Tepania [2018] NSWCCA 247 R v Todd [1982] 2 NSWLR 517 RC v R [2020] NSWCCA 76 RP v R [2015] NSWCCA 215 Tepania v R [2018] NSWCCA 247 Why v R [2017] NSWCCA 101
Category:	Sentence
Parties:	Crown Andrew Button (a pseudonym)
Representation:	Counsel: Ms K Nightingale (Crown) Ms C O’Neill (Offender) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2020/00270252
Publication restriction:	Non-publication order regarding the identity of the offender, victim and names of persons involved or connected with the factual background of the offending.