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R v Antin (a pseudonym) (No 2)

R v Antin (a pseudonym) (No 2)

Case [2021] NSWDC 584 27 October 2021

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District Court

New South Wales

Medium Neutral Citation: R v Antin (a pseudonym) (No 2) [2021] NSWDC 584
Hearing dates: 27 October 2021
Date of orders: 27 October 2021
Decision date: 27 October 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Total limiting term 9 years 6 months. Referral to Mental Health Review Tribunal. See orders [47]

Catchwords:
CRIME- Sexual intercourse with person under age of 10 years (DV) - Indecent assault where victim under the age of 10 years - Assault with intent sexual intercourse child over 10 under 14 - Indecent assault person under 16 years of age
MENTAL HEALTH — Criminal proceedings — Person unfit to be tried - imposition of limiting term after Special hearing - principles to be applied
MENTAL HEALTH – Imposition of limiting term after special hearing – relevant factors to be applied - defendant aged 90 - suffers significant cognitive impairment dementia - offences against granddaughter - offences against child neighbour - hearing using AVL - interpreter required - some cooperation with the course of justice - physical and mental ill health - a life sentence - any role for mercy - sympathy not the test - victim impact

Legislation Cited:
Crime (Sentencing Procedure) Act 1999
Crimes Act 1900 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:
Anastasiou v R [2010] NSWCCA 110
ClarksonvR [2011] VSCA 152
CorbyvR [2010] NSWCCA 146
GS v R [2016] NSWCCA 266
GSH v R [2009] NSWCCA 214
R v AJP [2004] NSWCCA 434
R v Antin (a pseudonym) [2021] NSWDC 532
R v Antin, Unreported Wollongong District Court 31 March 2021
R v Engert (1995) 84 A Crim R 67
R v Gavel [2014] NSWCCA 56
R vKing [2009] NSWCCA 117
RvKNL [2005] NSWCCA 260
R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v VanRyn [2016] NSWCCA 1

Category: Sentence
Parties: Mr Antin (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr S Fraser, Public Defender (for the accused)
Solicitors:
Morrisons Law (for the accused)
Ms N Olender (Director of Public Prosecutions)

File Number(s): 2020/179635; 2020/46178
Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used.

SENTENCE – EX TEMPORE REVISED

Introduction

The pseudonym Mr Antin will be used for the defendant. When the judgment is taken out identifying information will be removed and the children will be referred to by the pseudonyms - Complainant B and Complainant C.
Mr Antin is 90 years old, he has dementia and other health problems. He was charged with a number of serious sexual offences initially in relation to three children but one charge in relation to one…

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 Antin (a pseudonym) (No 2)

Details

AGLC: R v Antin (a pseudonym) (No 2) [2021] NSWDC 584
Case: [2021] NSWDC 584
Decision Date: 27 October 2021

CaseChat Overview and Summary

The defendant, Antin, pleaded guilty to several charges including sexual intercourse with a person under the age of 10 years, indecent assault of the same victim, and assault with intent to have sexual intercourse with a child over 10 but under 14, as well as indecent assault of a child neighbour under 16 years of age. Antin, aged 90 and suffering from significant cognitive impairment and dementia, was deemed unfit to be tried and a special hearing was held to determine the limiting term. The court had to decide the appropriate limiting term to be imposed on Antin, considering his age, cognitive impairment, and the nature of the offences.

The court examined various factors in determining the limiting term, including the severity of the offences, the defendant's age, cognitive impairment, and the need to protect the community. The court held that the principle of mercy had no role in this determination and that sympathy for the defendant was not a relevant consideration. The court also acknowledged the significant impact on the victims, but this was not the sole factor in determining the limiting term. The court ultimately concluded that a total limiting term of 9 years and 6 months was appropriate, taking into account all relevant factors.

The court ordered that Antin be referred to the Mental Health Review Tribunal, with the possibility of his release on parole after serving the limiting term. The court's decision balanced the need to protect the community, consider the defendant's age and cognitive impairment, and acknowledge the impact on the victims. The final orders included the imposition of the limiting term and the referral to the Mental Health Review Tribunal.

Orders

Orders of the court

Total limiting term 9 years 6 months. Referral to Mental Health Review Tribunal. See orders [47]

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 Antin (a pseudonym) (No 2) [2021] NSWDC 584

Most Recent Citation

R v Mullins [2024] NSWDC 672

Cases citing this decision · 1 of 1 shown

R v Mullins
[2024] NSWDC 672 Para 141

…R v Antin (a pseudonym) (No 2) [2021] NSWDC 584 is the case to which I referred earlier involving a 90-year-old offender. Antin was suffering from significant cognitive impairment dementia and was found “unfit to be tried” by Acting Judge Woods QC in March 2021. A special hearing was conducted by Judge Haesler SC i…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

R v Antin (a pseudonym)
[2021] NSWDC 532 Para 3

…and 9 of the original indictment. I found him not guilty of count 7 and he must have the full benefit of that acquittal: R v Antin (a pseudonym) [2021] NSWDC 532.…
GS v R
[2016] NSWCCA 266 Para 36

…10. It is not for this Court to impose an inappropriate sentence in order to give an ill or elderly offender hope of release before his death: GS v R [2016] NSWCCA 266 at 107.…
R v Van Ryn
[2016] NSWCCA 1 Para 20

…For indecent assaults I must consider the actual character of the assaults: R v Van Ryn [2016] NSWCCA 1. I look at the:…
R v Gavel
[2014] NSWCCA 56 Para 19

…o protect children from the physical and psychological harm taken to be caused by premature sexual activity Clarkson v R [2011] VSCA 152: R v Gavel [2014] NSWCCA 56. This is one important reason for the high maximum penalties fixed for indecent assault offences and particularly those involving sexual intercourse wi…
Clarkson v R
[2011] VSCA 152 Para 19

…t prohibition is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity Clarkson v R [2011] VSCA 152: R v Gavel [2014] NSWCCA 56. This is one important reason for the high maximum penalties fixed for indecent assault offences and particularly those inv…
Corby v R
[2010] NSWCCA 146 Para 3

…whether there was skin on skin contact: GSH v R [2009] NSWCCA 214; Corby v R [2010] NSWCCA 146…
R v McEvoy
[2010] NSWCCA 110 Para 36

…y for some, although I suspect not for many in the community, it is not the test the Court must apply. The Court must apply principle: Anastasiou v R [2010] NSWCCA 110. It is not for this Court to impose an inappropriate sentence in order to give an ill or elderly offender hope of release before his death: GS v R [2…
GSH v R; R v GSH
[2009] NSWCCA 214 Para 3

…whether there was skin on skin contact: GSH v R [2009] NSWCCA 214; Corby v R [2010] NSWCCA 146…
R v King
[2009] NSWCCA 117 Para 19

…Mr Fraser’s submissions set out factors relating to my assessment of the objective gravity of the offending: R v King [2009] NSWCCA 117; R v AJP [2004] NSWCCA 434. In brief summary there is an absolute prohibition on sexual activity with a child. That prohibition is intended to protect children from the physical and…
Cahyadi v R
[2007] NSWCCA 1 Para 37

…ory to the second and it was a one off incident. The term for the more serious offence being Count 8 can reflect the criminality of both: R v Cahyadi [2007] NSWCCA 1. So far as Complainant B is concerned there were two distinct types of offending and they were not isolated but part of a pattern. There must be some…
R v KNL
[2005] NSWCCA 260 Para 5

…the age of the child relative to the range encompassed by the offence as the younger the child the more serious the offence: R v KNL [2005] NSWCCA 260.…
R v AJP
[2004] NSWCCA 434 Para 19

…Mr Fraser’s submissions set out factors relating to my assessment of the objective gravity of the offending: R v King [2009] NSWCCA 117; R v AJP [2004] NSWCCA 434. In brief summary there is an absolute prohibition on sexual activity with a child. That prohibition is intended to protect children from the physical and…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 12

…ot allow a discount on that sentence as contemplated by the Crimes (Sentencing Procedure) Act and the guideline decision of R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383. The restrictions placed on matters dealt with in the indictment would not, given the structure of both Acts, mean s 25D Crimes…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 12

…on that sentence as contemplated by the Crimes (Sentencing Procedure) Act and the guideline decision of R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383. The restrictions placed on matters dealt with in the indictment would not, given the structure of both Acts, mean s 25D Crimes (Sentencing Procedure…

Legislation cited in this decision · 4

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crime (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 4)
Crimes Act 1900 (ACT)
1 mention (from Para 4)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	R v Antin (a pseudonym) (No 2) [2021] NSWDC 584
Hearing dates:	27 October 2021
Date of orders:	27 October 2021
Decision date:	27 October 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Total limiting term 9 years 6 months. Referral to Mental Health Review Tribunal. See orders [47]
Catchwords:	CRIME- Sexual intercourse with person under age of 10 years (DV) - Indecent assault where victim under the age of 10 years - Assault with intent sexual intercourse child over 10 under 14 - Indecent assault person under 16 years of age MENTAL HEALTH — Criminal proceedings — Person unfit to be tried - imposition of limiting term after Special hearing - principles to be applied MENTAL HEALTH – Imposition of limiting term after special hearing – relevant factors to be applied - defendant aged 90 - suffers significant cognitive impairment dementia - offences against granddaughter - offences against child neighbour - hearing using AVL - interpreter required - some cooperation with the course of justice - physical and mental ill health - a life sentence - any role for mercy - sympathy not the test - victim impact
Legislation Cited:	Crime (Sentencing Procedure) Act 1999 Crimes Act 1900 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Cases Cited:	Anastasiou v R [2010] NSWCCA 110 ClarksonvR [2011] VSCA 152 CorbyvR [2010] NSWCCA 146 GS v R [2016] NSWCCA 266 GSH v R [2009] NSWCCA 214 R v AJP [2004] NSWCCA 434 R v Antin (a pseudonym) [2021] NSWDC 532 R v Antin, Unreported Wollongong District Court 31 March 2021 R v Engert (1995) 84 A Crim R 67 R v Gavel [2014] NSWCCA 56 R vKing [2009] NSWCCA 117 RvKNL [2005] NSWCCA 260 R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v VanRyn [2016] NSWCCA 1
Category:	Sentence
Parties:	Mr Antin (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the accused) Solicitors: Morrisons Law (for the accused) Ms N Olender (Director of Public Prosecutions)
File Number(s):	2020/179635; 2020/46178
Publication restriction:	Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used.