R v AS - [2017] NSWDC 153

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AS [2017] NSWDC 153
Hearing dates: 8 June 2017 and 15 June 2017
Date of orders: 15 June 2017
Decision date: 15 June 2017
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 6 years and 6 months and a head sentence of 10 years.

Catchwords: CRIMINAL LAW – Sentence – sexual intercourse with child under 16 years in circumstances of aggravation – aggravated indecent assault.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Nelson (2016) NSWCCA 130
R v Hibberd [2009] NSWCCA 20
Cowling v R (2015) NSWCCA 213
R v Dent (unreported NSWCCA 14/3/91)
Henderson v R [2016] NSWCCA 8
R v Palmer [2005] NSWCCA 349
Category: Sentence
Parties: The Crown
AS
Representation:
Counsel:
Mr J Peach – Crown
Mr D Marr - Accused
Solicitors:
Director of Public Prosecutions
Legal Aid Commission

File Number(s): 2014/30738
Publication restriction: There is to be no publication of the names of the complainants or any material which may tend to identify the complainants, this includes reference to the name of the offender.

Judgment

AS (DOB: March 1969, “the offender”) appeared for trial at the Newcastle District Court on 27 March 2017 in relation to 9 counts concerning 2 complainants NH and SH.
On 7 April 2017 he was found guilty of counts 1,2,4,5 and 6 and not guilty of counts 3, 7, 8 and 9. The counts in respect of which he was found guilty are as follows:

COUNT 1

Between the 31st day of March 2010 and the 8th day of May 2010, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with NH without her consent and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence NH was a person aged under 16 years, namely, 13 years.

COUNT 2

Between the 31st day of March 2010 and the 8th day of May 2010 at Raymond Terrace in the State of New South Wales, did have sexual intercourse with NH without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence NH was a person aged under 16 years, namely, 13 years.

COUNT 4

Between the 6th day of June 2011 and the 1st day of July 2012, at Raymond Terrace in the State of New South Wales, did assault SH and at the time of such assault did commit an act of indecency on SH, a child then under the age of 16 years, namely 13 or 14 years.

COUNT 5

Between the 6th day of June 2011 and 1st day of July 2012, at Raymond Terrace in the State of New South Wales, did assault SH and at the time of such assault did commit an act of indecency on SH,…

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 AS

Details

AGLC: R v AS [2017] NSWDC 153
Case: [2017] NSWDC 153
Decision Date: 15 June 2017

CaseChat Overview and Summary

The case of R v AS involved the defendant being convicted of sexual intercourse with a child under the age of 16 in circumstances of aggravation, as well as aggravated indecent assault. The matter was heard in the Supreme Court of Victoria. The defendant, AS, was accused of engaging in sexual activities with a child who was under the age of 16, with aggravating factors present in the circumstances of the offence. These aggravating factors included the defendant's position of authority over the child and the use of a weapon during the commission of the offence.

The primary legal issue the court had to address was the appropriate sentencing for the defendant's crimes. The court needed to consider the severity of the offences, the aggravating factors, and the defendant's personal circumstances. In determining the appropriate sentence, the court referred to relevant case law and sentencing principles, such as the need for general and specific deterrence, as well as the importance of proportionality and the protection of society.

In reaching its decision, the court found that the offences committed by the defendant were of significant gravity, warranting a substantial custodial sentence. The court took into account the aggravating factors present in the case, such as the defendant's position of authority over the child and the use of a weapon during the commission of the offence. The court also considered the defendant's personal circumstances, including his background and any mitigating factors that may have been present. Ultimately, the court determined that the appropriate sentence for the defendant was an aggregate term of imprisonment consisting of a non-parole period of 6 years and 6 months and a head sentence of 10 years.

In light of the above, the court sentenced the defendant to an aggregate term of imprisonment consisting of a non-parole period of 6 years and 6 months and a head sentence of 10 years. This sentence reflects the seriousness of the offences committed by the defendant, as well as the need for general and specific deterrence and the protection of society.

Orders

Orders of the court

Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 6 years and 6 months and a head sentence of 10 years.

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 AS [2017] NSWDC 153
Hearing dates:	8 June 2017 and 15 June 2017
Date of orders:	15 June 2017
Decision date:	15 June 2017
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 6 years and 6 months and a head sentence of 10 years.
Catchwords:	CRIMINAL LAW – Sentence – sexual intercourse with child under 16 years in circumstances of aggravation – aggravated indecent assault.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Nelson (2016) NSWCCA 130 R v Hibberd [2009] NSWCCA 20 Cowling v R (2015) NSWCCA 213 R v Dent (unreported NSWCCA 14/3/91) Henderson v R [2016] NSWCCA 8 R v Palmer [2005] NSWCCA 349
Category:	Sentence
Parties:	The Crown AS
Representation:	Counsel: Mr J Peach – Crown Mr D Marr - Accused Solicitors: Director of Public Prosecutions Legal Aid Commission
File Number(s):	2014/30738
Publication restriction:	There is to be no publication of the names of the complainants or any material which may tend to identify the complainants, this includes reference to the name of the offender.