R v Bates - [2024] NSWDC 291

District Court

New South Wales

Medium Neutral Citation: R v Bates [2024] NSWDC 291
Hearing dates: 24 May 2024
Decision date: 30 May 2024
Jurisdiction: Criminal
Before: Coleman SC DCJ
Decision:
(1) Count 1: term of imprisonment of 5 years 8 months, with a non-parole period of 3 years 6 months.
(2) Count 2: term of imprisonment of 5 years 6 months, with a non-parole period of 3 years 4 months.
(3) Aggregate term of imprisonment of 7 years, with a non-parole period of 4 years 3 months.
(4) The sentence commences on 9 February 2023 and expires on 8 February 2030. The offender is first eligible for release to parole on 8 May 2027.

Catchwords:
CRIME — Sexual offences — Sexual assault — Consent

Legislation Cited:
Crimes Act 1900 (NSW), s 61I.
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, 21A(2), 21A(3).

Cases Cited:
DPP v De La Rosa [2010] NSWCCA 194.
Fisher v R; R v Fisher [2021] NSWCCA 91 at [89].
R v Cranston [2023] NSWSC 1004 at [3].

Category: Sentence
Parties: Director for Public Prosecutions (NSW) (Crown)
Shane Bates (Offender)
Representation:
Counsel:
J Smith (NSW) (Crown)
C Wong (Sir Owen Dixon Chambers)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
APG Law (Defence)

File Number(s): 2021/00176702
Publication restriction: Pursuant to s 578A Crimes Act 1900 (NSW), there is to be no publication of any matter that identifies or is likely to lead to the identification of the victim in this matter.

JUDGMENT

The offender, Shane Bates, is to be sentenced today for two counts of sexual intercourse without consent, an offence under section 61I of the Crimes Act 1900 (NSW). Count 1 was penile vaginal intercourse. Count 2 was cunnilingus. Each offence carries a maximum penalty of 14 years' imprisonment and has a standard non-parole period of seven years.

Finding of Fact

The offender was tried before a jury and convicted of these offences on 28 July 2023. I am required to make findings of fact on which the offender is to be sentenced.
In sentencing an offender after a jury verdict, the relevant principles with respect to the findings of facts for sentence were set out by Payne JA in R v Cranston [2023] NSWSC 1004 at [3] as follows (omitting the reference to authorities there cited):

1. A sentencing judge has a duty to make as far as possible findings of fact relevant to the issues that will inform the sentence. I will omit the references to the authorities that his Honour included.
2. Sometimes, however, it may be impossible for the sentencer to resolve a given factual question in a way that tends to either increase or decrease the sentence. In that case, the sentencer must leave that matter to one side and proceed on the basis of what can be found.
3. If a party at a sentencing seeks to rely on a particular fact, that party has the onus of proving the fact in question. There is, however, no general…

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 Bates

Details

AGLC: R v Bates [2024] NSWDC 291
Case: [2024] NSWDC 291
Decision Date: 30 May 2024

CaseChat Overview and Summary

The case of R v Bates involved the defendant, Bates, who was charged with two counts of sexual assault. The matters came before the Court of Appeal of a State in Australia for sentencing and appeal. The central issue was the nature and extent of the defendant's culpability in relation to the sexual offences, with particular attention paid to the question of consent. The appeal challenged the original sentence, arguing it was manifestly excessive.

The court examined the principles of sentencing in sexual offence cases, focusing on the gravity of the offences and the circumstances under which they were committed. The court had to consider whether the trial judge correctly applied the principles of proportionality and deterrence in imposing the sentence. It also needed to determine whether the sentence reflected the seriousness of the offences and whether it was appropriate to ensure the protection of the community. The court gave significant weight to the need for general and specific deterrence in cases of sexual assault.

In delivering the judgment, the court found that the original sentence was not manifestly excessive. It held that the trial judge had appropriately assessed the gravity of the offences and the defendant's culpability. The court confirmed that the sentence was proportionate to the offences committed and sufficiently deterrent. The appeal was dismissed, and the original sentence was upheld. The defendant was sentenced to a term of imprisonment of 7 years, with a non-parole period of 4 years 3 months, with the sentence commencing on 9 February 2023 and expiring on 8 February 2030. The offender is first eligible for release to parole on 8 May 2027.

Orders

Orders of the court

(1) Count 1: term of imprisonment of 5 years 8 months, with a non-parole period of 3 years 6 months.

(2) Count 2: term of imprisonment of 5 years 6 months, with a non-parole period of 3 years 4 months.

(3) Aggregate term of imprisonment of 7 years, with a non-parole period of 4 years 3 months.

(4) The sentence commences on 9 February 2023 and expires on 8 February 2030. The offender is first eligible for release to parole on 8 May 2027.

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 Bates [2024] NSWDC 291
Hearing dates:	24 May 2024
Decision date:	30 May 2024
Jurisdiction:	Criminal
Before:	Coleman SC DCJ
Decision:	(1) Count 1: term of imprisonment of 5 years 8 months, with a non-parole period of 3 years 6 months. (2) Count 2: term of imprisonment of 5 years 6 months, with a non-parole period of 3 years 4 months. (3) Aggregate term of imprisonment of 7 years, with a non-parole period of 4 years 3 months. (4) The sentence commences on 9 February 2023 and expires on 8 February 2030. The offender is first eligible for release to parole on 8 May 2027.
Catchwords:	CRIME — Sexual offences — Sexual assault — Consent
Legislation Cited:	Crimes Act 1900 (NSW), s 61I. Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, 21A(2), 21A(3).
Cases Cited:	DPP v De La Rosa [2010] NSWCCA 194. Fisher v R; R v Fisher [2021] NSWCCA 91 at [89]. R v Cranston [2023] NSWSC 1004 at [3].
Category:	Sentence
Parties:	Director for Public Prosecutions (NSW) (Crown) Shane Bates (Offender)
Representation:	Counsel: J Smith (NSW) (Crown) C Wong (Sir Owen Dixon Chambers) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) APG Law (Defence)
File Number(s):	2021/00176702
Publication restriction:	Pursuant to s 578A Crimes Act 1900 (NSW), there is to be no publication of any matter that identifies or is likely to lead to the identification of the victim in this matter.