R v AS - [2008] NSWDC 278

CITATION: R v AS [2008] NSWDC 278
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT DATE:
31 October 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Charge 1 – Aggravated Indecent Assault
13/02/2003 to 02/03/2004
Convicted
Sentenced to Fixed Term 3 years to COMMENCE ON: 24/03/2008
EXPIRE ON: 23/03/2011
Charge 2 – Sexual Intercourse without consent with 16 year old (digital)
13/02/2003 to 02/03/2004
Convicted
Sentenced Non-Parol Period of 3 years to COMMENCE ON: 24/03/2008
EXPIRE ON: 23/03/2011
Balance of Term 2 year Period – EXPIRE ON: 23/03/2013
Charge 3 – Sexual Intercourse without Consent with 16 year old (penial)
13/02/2003 to 02/03/2004
Convicted
Sentenced Non-Parol Period of 4 years to COMMENCE ON: 24/03/2008
EXPIRE ON: 23/03/2012
Balance of Term 2 year Period – EXPIRE ON: 23/03/2014
Charge 4 – Aggravated Indecent Assault
19/03/2004 to 17/12/2004
Convicted
Sentenced Fixed Term 3 years to COMMENCE ON: 24/03/2009
EXPIRE ON: 23/03/2012
Charge 5 – Sexual Intercourse without consent with 16 year old (digital)
19/03/2004 to 17/12/2004
Convicted
Sentenced Non-Parol Period of 3 years to COMMENCE ON: 24/03/2009
EXPIRE ON: 23/03/2012
Balance of Term – EXPIRE ON: 23/03/2012
Charge 6 – Sexual Intercourse without Consent with 16 year old (penial)
19/03/2004 to 17/12/2004
Convicted
Sentenced Non-Parol Period of 4 years to COMMENCE ON: 24/03/2009
EXPIRE ON: 23/03/2013
Balance of Term 3 years Period – EXPIRE ON: 23/03/2016
Charge 7 – Sexual Intercourse without Consent with 16 year old (penial)
19/03/2004 to 22/12/2004
Convicted
Sentenced Non-Parol Period of 4 years to COMMENCE ON: 24/03/2010
EXPIRE ON: 23/03/2014
Balance of Term Period to EXPIRE ON: 23/03/2016
Charge 8 – Aggravated Indecent Assault
13/12/2005 to 04/07/2006
Convicted
Sentenced to Fixed Term 3 years to COMMENCE ON: 24/03/2011
EXPIRE ON: 23/03/2014
Charge 9 – Sexual Intercourse without consent with 16 year old (digital)
13/12/2005 to 04/07/2006
Convicted
Sentenced Non-Parol Period of 3 years to COMMENCE ON: 24/03/2011
EXPIRE ON: 23/03/2014
Balance of Term – EXPIRE ON: 23/03/2016
Charge 10 – Sexual Intercourse without Consent with 16 year old (penial)
13/12/2005 to 04/07/2006
Convicted
Sentenced Non-Parol Period of 4 years to COMMENCE ON:24/03/2011
EXPIRE ON: 23/03/2015
Balance of Term 3 years Period – EXPIRE ON: 23/03/2018
Earliest date for release 23/03/2015
Order that Child Protection Order be lodged with Registry

CATCHWORDS: Criminal Law - sentence after trial - indecent assault (x3) sexual intercourse without consent with person under age of 16 years (x7) -standard non parole period offences - penile-vaginal penetration (x4) - digital-vaginal penetration (x3) - complainant aged 10 -14 years - accused defacto partner of complainant's mother - offences reflect three occasions of sexual activity over three and half year period - offences occur when offender and complainant alone in home - complainant experiences servere pain during penile-vaginal offences - aged 22 at time of initial offending - significantly disadvantaged childhood with some defiance - average intellect - education deprived - illiterate and innumerate - on-going general health problems - head injury sequali absence…

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 [2008] NSWDC 278
Case: [2008] NSWDC 278
Decision Date: 31 October 2008

CaseChat Overview and Summary

In the matter of R v AS, the accused was convicted on multiple counts of sexual offences against a child under the age of 16, specifically involving acts of aggravated indecent assault and sexual intercourse without consent. The offences spanned a period of three and a half years, occurring when the offender and the complainant, aged between 10 and 14, were alone in the home. The complainant experienced severe pain during the penile-vaginal offences. The accused, aged 22 at the time of the initial offending, had a significantly disadvantaged childhood, demonstrated some defiance, and was of average intellect but had limited education and literacy. The accused also suffered from ongoing general health problems and had a head injury leading to the absence of contrition. The court found that the standard non-parole period was not appropriate given the special circumstances.

The court was required to determine the appropriate sentence for the accused, considering the nature and severity of the offences, the age of the complainant, the accused's background, and the absence of prior offending. The court also had to assess whether the standard non-parole period was suitable or if special circumstances warranted a deviation. The court found that the standard non-parole period did not adequately reflect the gravity of the offences and the accused's background, leading to a decision on the non-parole period for each count. The court acknowledged the accused's disadvantaged upbringing and health issues but emphasised the severity of the crimes and the need for deterrence and protection of the community.

The court sentenced the accused to specific non-parole periods for each count, deviating from the standard non-parole periods due to the special circumstances. The sentences included fixed terms and non-parole periods that took into account the accused's background and the severity of the offences. The court also ordered that a Child Protection Order be lodged with the registry, reflecting the need to protect the complainant and others from further harm. The court's sentencing aimed to balance the need for punishment, deterrence, and rehabilitation with consideration of the accused's background and circumstances.

Orders

Orders of the court

Charge 1 – Aggravated Indecent Assault

13/02/2003 to 02/03/2004

Convicted

Sentenced to Fixed Term 3 years to COMMENCE ON: 24/03/2008

EXPIRE ON: 23/03/2011

Charge 2 – Sexual Intercourse without consent with 16 year old (digital)

13/02/2003 to 02/03/2004

Convicted

Sentenced Non-Parol Period of 3 years to COMMENCE ON: 24/03/2008

EXPIRE ON: 23/03/2011

Balance of Term 2 year Period – EXPIRE ON: 23/03/2013

Charge 3 – Sexual Intercourse without Consent with 16 year old (penial)

13/02/2003 to 02/03/2004

Convicted

Sentenced Non-Parol Period of 4 years to COMMENCE ON: 24/03/2008

EXPIRE ON: 23/03/2012

Balance of Term 2 year Period – EXPIRE ON: 23/03/2014

Charge 4 – Aggravated Indecent Assault

19/03/2004 to 17/12/2004

Convicted

Sentenced Fixed Term 3 years to COMMENCE ON: 24/03/2009

EXPIRE ON: 23/03/2012

Charge 5 – Sexual Intercourse without consent with 16 year old (digital)

19/03/2004 to 17/12/2004

Convicted

Sentenced Non-Parol Period of 3 years to COMMENCE ON: 24/03/2009

EXPIRE ON: 23/03/2012

Balance of Term – EXPIRE ON: 23/03/2012

Charge 6 – Sexual Intercourse without Consent with 16 year old (penial)

19/03/2004 to 17/12/2004

Convicted

Sentenced Non-Parol Period of 4 years to COMMENCE ON: 24/03/2009

EXPIRE ON: 23/03/2013

Balance of Term 3 years Period – EXPIRE ON: 23/03/2016

Charge 7 – Sexual Intercourse without Consent with 16 year old (penial)

19/03/2004 to 22/12/2004

Convicted

Sentenced Non-Parol Period of 4 years to COMMENCE ON: 24/03/2010

EXPIRE ON: 23/03/2014

Balance of Term Period to EXPIRE ON: 23/03/2016

Charge 8 – Aggravated Indecent Assault

13/12/2005 to 04/07/2006

Convicted

Sentenced to Fixed Term 3 years to COMMENCE ON: 24/03/2011

EXPIRE ON: 23/03/2014

Charge 9 – Sexual Intercourse without consent with 16 year old (digital)

13/12/2005 to 04/07/2006

Convicted

Sentenced Non-Parol Period of 3 years to COMMENCE ON: 24/03/2011

EXPIRE ON: 23/03/2014

Balance of Term – EXPIRE ON: 23/03/2016

Charge 10 – Sexual Intercourse without Consent with 16 year old (penial)

13/12/2005 to 04/07/2006

Convicted

Sentenced Non-Parol Period of 4 years to COMMENCE ON:24/03/2011

EXPIRE ON: 23/03/2015

Balance of Term 3 years Period – EXPIRE ON: 23/03/2018

Earliest date for release 23/03/2015

Order that Child Protection Order be lodged with Registry

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.

CITATION:	R v AS [2008] NSWDC 278 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	31 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Charge 1 – Aggravated Indecent Assault 13/02/2003 to 02/03/2004 Convicted Sentenced to Fixed Term 3 years to COMMENCE ON: 24/03/2008 EXPIRE ON: 23/03/2011 Charge 2 – Sexual Intercourse without consent with 16 year old (digital) 13/02/2003 to 02/03/2004 Convicted Sentenced Non-Parol Period of 3 years to COMMENCE ON: 24/03/2008 EXPIRE ON: 23/03/2011 Balance of Term 2 year Period – EXPIRE ON: 23/03/2013 Charge 3 – Sexual Intercourse without Consent with 16 year old (penial) 13/02/2003 to 02/03/2004 Convicted Sentenced Non-Parol Period of 4 years to COMMENCE ON: 24/03/2008 EXPIRE ON: 23/03/2012 Balance of Term 2 year Period – EXPIRE ON: 23/03/2014 Charge 4 – Aggravated Indecent Assault 19/03/2004 to 17/12/2004 Convicted Sentenced Fixed Term 3 years to COMMENCE ON: 24/03/2009 EXPIRE ON: 23/03/2012 Charge 5 – Sexual Intercourse without consent with 16 year old (digital) 19/03/2004 to 17/12/2004 Convicted Sentenced Non-Parol Period of 3 years to COMMENCE ON: 24/03/2009 EXPIRE ON: 23/03/2012 Balance of Term – EXPIRE ON: 23/03/2012 Charge 6 – Sexual Intercourse without Consent with 16 year old (penial) 19/03/2004 to 17/12/2004 Convicted Sentenced Non-Parol Period of 4 years to COMMENCE ON: 24/03/2009 EXPIRE ON: 23/03/2013 Balance of Term 3 years Period – EXPIRE ON: 23/03/2016 Charge 7 – Sexual Intercourse without Consent with 16 year old (penial) 19/03/2004 to 22/12/2004 Convicted Sentenced Non-Parol Period of 4 years to COMMENCE ON: 24/03/2010 EXPIRE ON: 23/03/2014 Balance of Term Period to EXPIRE ON: 23/03/2016 Charge 8 – Aggravated Indecent Assault 13/12/2005 to 04/07/2006 Convicted Sentenced to Fixed Term 3 years to COMMENCE ON: 24/03/2011 EXPIRE ON: 23/03/2014 Charge 9 – Sexual Intercourse without consent with 16 year old (digital) 13/12/2005 to 04/07/2006 Convicted Sentenced Non-Parol Period of 3 years to COMMENCE ON: 24/03/2011 EXPIRE ON: 23/03/2014 Balance of Term – EXPIRE ON: 23/03/2016 Charge 10 – Sexual Intercourse without Consent with 16 year old (penial) 13/12/2005 to 04/07/2006 Convicted Sentenced Non-Parol Period of 4 years to COMMENCE ON:24/03/2011 EXPIRE ON: 23/03/2015 Balance of Term 3 years Period – EXPIRE ON: 23/03/2018 Earliest date for release 23/03/2015 Order that Child Protection Order be lodged with Registry
CATCHWORDS:	Criminal Law - sentence after trial - indecent assault (x3) sexual intercourse without consent with person under age of 16 years (x7) -standard non parole period offences - penile-vaginal penetration (x4) - digital-vaginal penetration (x3) - complainant aged 10 -14 years - accused defacto partner of complainant's mother - offences reflect three occasions of sexual activity over three and half year period - offences occur when offender and complainant alone in home - complainant experiences servere pain during penile-vaginal offences - aged 22 at time of initial offending - significantly disadvantaged childhood with some defiance - average intellect - education deprived - illiterate and innumerate - on-going general health problems - head injury sequali absence…