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R v Apps (a pseudonym)

R v Apps (a pseudonym)

Case [2020] NSWDC 111 21 February 2020

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District Court

New South Wales

Medium Neutral Citation: R v Apps (a pseudonym) [2020] NSWDC 111
Hearing dates: 21 February 2020
Decision date: 21 February 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of five years and two months imprisonment. Non parole period of three years.

Catchwords:
SENTENCING – multiple sexual offences old and fresh - aggregate sentence.

SENTENCING – after trial – old offences - two complainants - mixed verdicts – convictions for sexual and indecent assaults - full benefit of acquittals.

SENTENCING - relevant factors on sentence - after trial - baby sitter - breach of trust-victim impact - young immature offender – delay - multiple offences - structure of sentence.
SENTENCING- after guilty plea- recent offence- sexual intercourse child under 16 – child aged 15 years 11 months 3 weeks – consent – in company - age difference - child isolated - adult offender - guilty plea - custodial sentence required on other matter.
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Dawkins v R [2018] NSWCCA 278
DM [2005] NSW CCA 181
Hearne (2001) 124 A Crim R 451
Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150
KT v R (2008) 182 A Crim R 571
Mill v The Queen (1988) 166 CLR 59
Nelson [2016] NSWCCA 130
R v Cattell [2019] NSWCCA 297
R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159.
R v Pham & Ly (1991) 55 A Crim R 128
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Todd [1982] 2 NSWLR 517
Ryan (2001) 206 CLR 267
Veen v The Queen No 2 (1988) 64 CLR 465
Wakeling v R [2016] NSWCCA 33
Weininger v The Queen (2003) 211 CLR 629
Category: Sentence
Parties: Steven Apps (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr P Williams (for the offender)
Solicitors:
Jennifer Chalker Lawyer (for the offender) (for the offender)
Mr A Tonks (for Director of Public Prosecutions)

File Number(s): 2017/00173694; 2019/00063783
Publication restriction: Pursuant to s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987 that there is to be no publication of the names of the offender and the complainants, any information that might identify the child complainants or that may reveal the relationship between the offender and the child complainants.

SENTENCE

As the publication of the offender’s name for the sentence matter would lead to identifying both the offender and the complainant’s in the trial matter (at which time he was a juvenile) I make a suppression order for the name of the offender.
Pseudonyms have been used for the names of the offender and child complainants. 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 a child including the complainants and the offender.…

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 Apps (a pseudonym)

Details

AGLC: R v Apps (a pseudonym) [2020] NSWDC 111
Case: [2020] NSWDC 111
Decision Date: 21 February 2020

CaseChat Overview and Summary

The case involved a defendant, referred to as Apps, who faced sentencing following a series of sexual offences. The court heard from two complainants, both of whom had experienced different outcomes in their respective trials. The nature of the dispute centred on the appropriate sentence to be imposed on Apps, given the mixed verdicts and the varying degrees of severity in the offences committed. The matter was heard in the higher court, which had the jurisdiction to consider the appropriate aggregate sentence.

The court was tasked with deciding several legal issues, including the relevance of old offences committed against one complainant, which resulted in mixed verdicts, and how these should influence the sentence. It also had to consider the impact of the victim's testimonies, the breach of trust by Apps, and the nature of the delay in bringing the charges. Furthermore, the court needed to balance the severity of the recent offence, which involved sexual intercourse with a child under 16, against the mitigating factors such as the age difference, the child's isolation, and Apps' guilty plea.

In reaching its decision, the court meticulously weighed various factors. It considered the gravity of the breach of trust, the impact on the victims, the immaturity of the offender, and the delay in prosecution. The court also took into account the nature of the fresh offence, the age of the victim, and the fact that Apps had pleaded guilty. The court concluded that a custodial sentence was necessary, given the seriousness of the offences and the need to protect the community. The aggregate sentence imposed was five years and two months imprisonment, with a non-parole period of three years.

The court's final orders reflected its decision, stipulating the aggregate sentence of five years and two months imprisonment, with a non-parole period of three years. This sentence was intended to reflect the court's assessment of the totality of the circumstances and the need to balance the interests of justice, the protection of society, and the rehabilitative potential of the offender.

Orders

Orders of the court

Aggregate sentence of five years and two months imprisonment. Non parole period of three years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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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 Apps (a pseudonym) [2020] NSWDC 111

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 13 of 13 shown

R v Cattell
[2019] NSWCCA 297 Para 51

…I accept that in some older sexual assault cases a child sex offender does not necessarily benefit from an extensive delay; R v Cattell [2019] NSWCCA 297. Each case is individual. As with many sentencing factors there is no one rule about how long delay should be taken into account. However here, for example, had th…
Dawkins v R
[2018] NSWCCA 278 Para 36

…ept the offender presumed the complainant had consented. Consent is relevant to an assessment of objective seriousness for such offences; Dawkins v R [2018] NSWCCA 278, citing Wakeling v R [2016] NSWCCA 33 and Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 at [77]. Strictly however, as Basten JA pointed out in…
R v Nelson
[2016] NSWCCA 130 Para 36

…g Wakeling v R [2016] NSWCCA 33 and Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 at [77]. Strictly however, as Basten JA pointed out in Nelson [2016] NSWCCA 130, to describe sexual activity involving children under 16 as consensual reveals an erroneous approach, as consent is not relevant to the elements of o…
Wakeling v R
[2016] NSWCCA 33 Para 36

…nt had consented. Consent is relevant to an assessment of objective seriousness for such offences; Dawkins v R [2018] NSWCCA 278, citing Wakeling v R [2016] NSWCCA 33 and Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 at [77]. Strictly however, as Basten JA pointed out in Nelson [2016] NSWCCA 130, to describe…
JM v R
[2012] NSWCCA 83 Para 58

…an immature young person whose criminal behaviour is not well formed. The other stresses the protective function of the Court; see Simpson J, JM v R [2012] NSWCCA 83.…
Hogan v R
[2008] NSWCCA 150 Para 36

…of objective seriousness for such offences; Dawkins v R [2018] NSWCCA 278, citing Wakeling v R [2016] NSWCCA 33 and Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 at [77]. Strictly however, as Basten JA pointed out in Nelson [2016] NSWCCA 130, to describe sexual activity involving children under 16 as consensua…
R v MAK
[2006] NSWCCA 381 Para 63

…iscount for multiple offending. This is particularly so where there are discrete and separate offences against discrete and separate victims; R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159.…
Weininger v The Queen
[2003] HCA 14 Para 68

…, there is no correct balance of those factors: see Veen v The Queen No 2 (1988) 64 CLR 465 at [478]. As the High Court said in Weininger v The Queen (2003) 211 CLR 629 at [23], sentencing:…
R v Simpson
[2001] NSWCCA 534 Para 66

…mum period for which he should be imprisoned must also properly reflect the gravity of the offences and the other purposes of sentencing; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704.…
Ryan v The Queen
[2001] HCA 21 Para 70

…notion that reflects the community's expectation the offender will suffer punishment and that particular offences will merit severe punishment: Ryan (2001) 206 CLR 267.…
Regina v Simpson
[1999] NSWCCA 367 Para 66

…h he should be imprisoned must also properly reflect the gravity of the offences and the other purposes of sentencing; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704.…
Mill v The Queen
[1988] HCA 70 Para 50

…rimes committed after a delay, a measure of understanding and flexibility of approach is occasioned; R v Todd [1982] 2 NSWLR 517 and Mill v The Queen (1988) 166 CLR 59. Although Todd and Mill both considered lengthy delay because a person was imprisoned in another State - as I understand it, the just and principled…
Herbert v R
[1941] HCA 12 Para 68

…ntal that where there are competing factors which must be taken into account, there is no correct balance of those factors: see Veen v The Queen No 2 (1988) 64 CLR 465 at [478]. As the High Court said in Weininger v The Queen (2003) 211 CLR 629 at [23], sentencing:…

Legislation cited in this decision · 3

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 2)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 28)
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v Apps (a pseudonym) [2020] NSWDC 111
Hearing dates:	21 February 2020
Decision date:	21 February 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of five years and two months imprisonment. Non parole period of three years.
Catchwords:	SENTENCING – multiple sexual offences old and fresh - aggregate sentence. SENTENCING – after trial – old offences - two complainants - mixed verdicts – convictions for sexual and indecent assaults - full benefit of acquittals. SENTENCING - relevant factors on sentence - after trial - baby sitter - breach of trust-victim impact - young immature offender – delay - multiple offences - structure of sentence. SENTENCING- after guilty plea- recent offence- sexual intercourse child under 16 – child aged 15 years 11 months 3 weeks – consent – in company - age difference - child isolated - adult offender - guilty plea - custodial sentence required on other matter.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Dawkins v R [2018] NSWCCA 278 DM [2005] NSW CCA 181 Hearne (2001) 124 A Crim R 451 Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 KT v R (2008) 182 A Crim R 571 Mill v The Queen (1988) 166 CLR 59 Nelson [2016] NSWCCA 130 R v Cattell [2019] NSWCCA 297 R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159. R v Pham & Ly (1991) 55 A Crim R 128 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Todd [1982] 2 NSWLR 517 Ryan (2001) 206 CLR 267 Veen v The Queen No 2 (1988) 64 CLR 465 Wakeling v R [2016] NSWCCA 33 Weininger v The Queen (2003) 211 CLR 629
Category:	Sentence
Parties:	Steven Apps (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr P Williams (for the offender) Solicitors: Jennifer Chalker Lawyer (for the offender) (for the offender) Mr A Tonks (for Director of Public Prosecutions)
File Number(s):	2017/00173694; 2019/00063783
Publication restriction:	Pursuant to s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987 that there is to be no publication of the names of the offender and the complainants, any information that might identify the child complainants or that may reveal the relationship between the offender and the child complainants.