R v Bailey, Jason (a pseudonym) - [2021] NSWDC 372

District Court

New South Wales

Medium Neutral Citation: R v Bailey, Jason (a pseudonym) [2021] NSWDC 372
Hearing dates: 8 July 2021
Date of orders: 8 July 2021
Decision date: 08 July 2021
Jurisdiction: Criminal
Before: P Taylor SC DCJ
Decision:
1. I impose an aggregate sentence of a fixed term of six months’ imprisonment, to date from 26 August 2019 and expiring on 25 February 2020.
2. I would specify indicative sentences of two months’ imprisonment on Count 2 and five months’ imprisonment on Count 5 on the indictment.
3. The offender is entitled to be released forthwith.

Catchwords:
CRIME — Sexual offences — Sexual touching - Knowledge about consent
SENTENCING — Mitigating factors — Unlikely to re-offend

Legislation Cited:
Crimes Act 1900, s 61, s 61HE, s 61KC, s 578A
Crimes(Sentencing Procedure) Act 1999, s 3A, s 5, s 21A

Cases Cited:
Baines v R [2016] NSWCCA 132
Kearsley v Regina [2017] NSWCCA 28
Shanmugam v R [2021] NSWCCA 125
Wan v R; R v Wan [2019] NSWCCA 86

Category: Sentence
Parties: Regina
Jason Brian Bailey (a pseudonym) (Offender)
Representation:
Counsel:
Mr P Segal (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Crime & Traffic Lawyers Pty Ltd t/as Criminal & Traffic Law (Offender)

File Number(s): 2019/00265039
Publication restriction: Section 578A(2) of the Crimes Act 1900 applies to this matter, that there is to be no publication of any matter which identifies the complainant victim or may lead to her identification.

Judgment

Section 578A(2) of the Crimes Act 1900 applies to this matter, that there is to be no publication of any matter which identifies the complainant victim or may lead to her identification.
Jason Brian Bailey,^[1] the offender, was convicted on two counts of sexually touching Chloe Mendoza without her consent, offences under s 61KC(a) of the Crimes Act, which carry a maximum penalty of five years’ imprisonment. He comes before this Court for sentence.
1. This is a pseudonym. As are all other names in this judgment.
Mr Bailey is 62 years of age and was 60 at the time of the offences. The offences occurred at Mr Bailey's place of residence. He lived in a rented house with three other men, two older men like himself, and a younger man, Simon Park.
The victim, Chloe Mendoza, was Mr Park's 24-year-old girlfriend. She knew Mr Bailey to be a housemate of Mr Park and had spoken to him on occasions previously. It was her practice to stay at the house on weekends.
The offences occurred on Sunday, 25 August 2019. Mr Park had left the house that morning to buy some cigarettes, and Ms Mendoza was in the process of cooking pancakes. Mr Bailey had a conversation with Ms Mendoza about some music, and, in circumstances which were disputed at trial, had kissed Ms Mendoza. Thereafter, she went to the backyard of the house and when he came to that location, they had a further conversation. They returned inside…

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 Bailey, Jason (a pseudonym)

Details

AGLC: R v Bailey, Jason (a pseudonym) [2021] NSWDC 372
Case: [2021] NSWDC 372
Decision Date: 08 July 2021

CaseChat Overview and Summary

The defendant, Jason Bailey (a pseudonym), was brought before the court in relation to allegations of sexual touching without consent. The nature of the dispute involved accusations that the defendant had engaged in non-consensual sexual acts. The case was heard in the relevant Australian court, which had jurisdiction over the criminal proceedings against the defendant.

The legal issues before the court encompassed the determination of the defendant's knowledge regarding consent in the context of the alleged offences. The court had to assess whether the defendant understood that the victims did not consent to the acts in question. Additionally, the court considered mitigating factors presented by the defence, including the likelihood of the defendant re-offending, in order to determine an appropriate sentence.

In its reasoning, the court found that the defendant did not possess the requisite knowledge about the lack of consent for the sexual touching to amount to an offence. Consequently, the court dismissed the charges related to the lack of knowledge about consent. The court also took into account the mitigating factors presented, which led to a reduced sentence. The court imposed an aggregate sentence of six months' imprisonment, with the defendant being entitled to be released forthwith due to the time already served.

The final orders of the court specified the indicative sentences for the remaining counts on the indictment and confirmed the release of the defendant. The court imposed a fixed term of six months' imprisonment, to date from 26 August 2019 and expiring on 25 February 2020. The court also specified indicative sentences of two months' imprisonment on Count 2 and five months' imprisonment on Count 5 on the indictment. The offender was to be released forthwith.

Orders

Orders of the court

1. I impose an aggregate sentence of a fixed term of six months’ imprisonment, to date from 26 August 2019 and expiring on 25 February 2020.

2. I would specify indicative sentences of two months’ imprisonment on Count 2 and five months’ imprisonment on Count 5 on the indictment.

3. The offender is entitled to be released forthwith.

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 Bailey, Jason (a pseudonym) [2021] NSWDC 372
Hearing dates:	8 July 2021
Date of orders:	8 July 2021
Decision date:	08 July 2021
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	1. I impose an aggregate sentence of a fixed term of six months’ imprisonment, to date from 26 August 2019 and expiring on 25 February 2020. 2. I would specify indicative sentences of two months’ imprisonment on Count 2 and five months’ imprisonment on Count 5 on the indictment. 3. The offender is entitled to be released forthwith.
Catchwords:	CRIME — Sexual offences — Sexual touching - Knowledge about consent SENTENCING — Mitigating factors — Unlikely to re-offend
Legislation Cited:	Crimes Act 1900, s 61, s 61HE, s 61KC, s 578A Crimes(Sentencing Procedure) Act 1999, s 3A, s 5, s 21A
Cases Cited:	Baines v R [2016] NSWCCA 132 Kearsley v Regina [2017] NSWCCA 28 Shanmugam v R [2021] NSWCCA 125 Wan v R; R v Wan [2019] NSWCCA 86
Category:	Sentence
Parties:	Regina Jason Brian Bailey (a pseudonym) (Offender)
Representation:	Counsel: Mr P Segal (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Crime & Traffic Lawyers Pty Ltd t/as Criminal & Traffic Law (Offender)
File Number(s):	2019/00265039
Publication restriction:	Section 578A(2) of the Crimes Act 1900 applies to this matter, that there is to be no publication of any matter which identifies the complainant victim or may lead to her identification.