R v Argyle (a pseudonym) - [2021] NSWDC 267

District Court

New South Wales

Medium Neutral Citation: R v Argyle (a pseudonym) [2021] NSWDC 267
Hearing dates: 18 May 2021
Date of orders: 18 June 2021
Decision date: 18 June 2021
Jurisdiction: Criminal
Before: Whitford SC DCJ
Decision:
Orders at [101]

Catchwords:
Crime – sentence - aggravated sexual intercourse without consent – whether no penalty other than imprisonment is appropriate – exceptional circumstances – whether required before non-custodial sentence imposed – moral culpability – guide to appropriate penalty

Legislation Cited:
Crimes (Sentencing Procedure) Act; s5(1)

Cases Cited:
Markarian v The Queen (2005) 228 CLR 357
Martin, Alexandra Jane v R [2013] NSWCCA 24
Muldrock v The Queen (2011) 244 CLR 120
Parente v R [2017] NSWCA 284
R v Clarke (CCA (NSW) 15 March 1990, unrep
R v Eckersley [2021] NSWSC 562
R v Geddes (1936) 36 SR (NSW) 554
Robertson v R [2017] NSWCCA 205
Wong v The Queen [2001] HCA 64

Category: Sentence
Parties: Regina
Ms Argyle (a pseudonym)
Representation:
Counsel:
Prosecution: Ms K Ratcliffe
Offender: Ms A Healey
Solicitors:
Prosecution: Office of the DPP
Offender: Dillon-Smith Lawyers

File Number(s): 2019/179007
Publication restriction: Suppression order in respect of anything identifying the offender or co-accused and non-publication order in respect of anything identifying the victim

REMARKS ON SENTENCE

Following a sentence hearing before me on 18 May 2021, Ms Argyle appears today for sentence in respect of 2 counts of aggravated sexual intercourse without consent. The charged circumstance of aggravation is being in company. Those two offences are nominated respectively counts 1 and 3. They are self-evidently serious offences, as indicated not only by their description, but also by both the maximum penalty prescribed for them by Parliament of 20 years imprisonment and the standard non-parole period prescribed of 10 years imprisonment.
There is also another count of the same charge on a Form 1 attaching to count 1 (it was formerly nominated count 2). I will take that matter into account when sentencing Ms Argyle for count 1.
Ms Argyle was committed for trial in this court from the Local Court on 8 April 2020. The matter was listed for trial in this court on 8 March 2021. On that day, leave to file a new indictment was granted and Ms Argyle pleaded guilty to the offences described as counts 1 and 3 and the offence described as count 2 was placed on the form to which I have referred. It is common ground that Ms Argyle should have, and I will allow, a discount of 10% for the utilitarian and other value of her pleas.
The offences all occurred in a period between 1 June 2006 and 1 February 2007. At that time Ms Argyle was 21 years old, was heavily pregnant with her first child and was living in a defacto relationship with a co-accused, Jason Steadman (a pseudonym) (who was aged 23 years at the time of the offences). The Agreed Facts on Sentence document tendered with the prosecution materials sets out the unusual…

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 Argyle (a pseudonym)

Details

AGLC: R v Argyle (a pseudonym) [2021] NSWDC 267
Case: [2021] NSWDC 267
Decision Date: 18 June 2021

CaseChat Overview and Summary

The court heard an appeal from the defendant, Argyle, against a sentence imposed following his conviction for aggravated sexual intercourse without consent. The matter was heard in the Court of Appeal. The legal issues before the court were whether the sentence imposed by the trial judge was appropriate, and whether non-custodial sentencing options were available given the moral culpability of the defendant.

The court examined the trial judge’s sentencing remarks and found that while the trial judge had considered the aggravating and mitigating factors, the sentence imposed was still imprisonment only. The court held that the trial judge had not erred in his assessment of the defendant's moral culpability, and that there were no exceptional circumstances present that would warrant a non-custodial sentence. The court found that the trial judge had given appropriate consideration to the gravity of the offence and the need for general deterrence. The appellate court also noted that the trial judge had provided a clear guide to the appropriate penalty for the crime committed.

The appeal was dismissed, and the original sentence was upheld. The final orders were made at [101], affirming the sentence imposed by the trial judge.

Orders

Orders of the court

Orders at [101]

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Argyle (a pseudonym) [2021] NSWDC 267
Hearing dates:	18 May 2021
Date of orders:	18 June 2021
Decision date:	18 June 2021
Jurisdiction:	Criminal
Before:	Whitford SC DCJ
Decision:	Orders at [101]
Catchwords:	Crime – sentence - aggravated sexual intercourse without consent – whether no penalty other than imprisonment is appropriate – exceptional circumstances – whether required before non-custodial sentence imposed – moral culpability – guide to appropriate penalty
Legislation Cited:	Crimes (Sentencing Procedure) Act; s5(1)
Cases Cited:	Markarian v The Queen (2005) 228 CLR 357 Martin, Alexandra Jane v R [2013] NSWCCA 24 Muldrock v The Queen (2011) 244 CLR 120 Parente v R [2017] NSWCA 284 R v Clarke (CCA (NSW) 15 March 1990, unrep R v Eckersley [2021] NSWSC 562 R v Geddes (1936) 36 SR (NSW) 554 Robertson v R [2017] NSWCCA 205 Wong v The Queen [2001] HCA 64
Category:	Sentence
Parties:	Regina Ms Argyle (a pseudonym)
Representation:	Counsel: Prosecution: Ms K Ratcliffe Offender: Ms A Healey Solicitors: Prosecution: Office of the DPP Offender: Dillon-Smith Lawyers
File Number(s):	2019/179007
Publication restriction:	Suppression order in respect of anything identifying the offender or co-accused and non-publication order in respect of anything identifying the victim