R v Bourke (a pseudonym) - [2020] NSWDC 10

District Court

New South Wales

Medium Neutral Citation: R v Bourke (a pseudonym) [2020] NSWDC 10
Hearing dates: 16 December 2019
Decision date: 14 February 2020
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 16 years and 6 months with a non-parole period of 12 years.

Catchwords: CRIME - SENTENCE - sexual intercourse with person above 14 years of age but less than 16 years of age - sexual intercourse without consent - assault with act of indecency - common assault - threatened use of an offensive weapon with intent to commit an indictable offence - intimidation - larceny - destroying or damaging property.
Legislation Cited: Crimes Act 1900 (NSW): ss66C(3), 61I, 61L, 61, 32b(1)(a), 117, 195(1)(a); Crimes (Domestic and Personal Violence) Act 2007: s13(1)
Cases Cited: Bugmy v R [2013] 249 CLR 571
Category: Sentence
Parties:
Regina (Crown)
Mr Bourke (a pseudonym) (Offender)
Representation:
Mr Page (Trial Advocate)
Mr Rajalingam (Counsel for the offender)

File Number(s): 2017/389374
Publication restriction: Non - publication order made of the offender and the victims and any other information which might directly or indirectly identify any of them

Judgment

To the extent necessary, I confirm and continue the non-publication order previously made of the name of the offender and of the two victims of the offender’s criminal conduct and of any other thing that might identify any of them, directly or indirectly.
Mr Bourke, you appear for sentence today in relation to 14 offences.
As I shall explain, 11 of those offences followed a trial which commenced on 16 September 2019 and which concluded on 19 September 2019. The jury found you guilty in relation to all 11 Counts that were before them.
A further two related offences were on a s 166 certificate.
You pleaded guilty to the fourteenth offence at the conclusion of that trial and after the jury returned its 11 verdicts of guilty; and after I found you guilty of the two matters on the s 166 certificate.
The fourteenth offence was sexual intercourse with a person above 14 years but less than 16 years of age.
The fourteenth offence involves a contravention of s 66 C (3) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment. There is no standard non-parole period.
In relation to this principal offence, you have asked me to take into account a matter of sexual intercourse with a person aged above 14 years but less than 16 years on a Form 1, which I have certified.
In relation to the 11 verdicts of guilty, six of the relevant offences were sexual intercourse without consent.
These offences each involve contraventions of s 61 I of the Crimes Act. The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of 7 years imprisonment.
Two of the offences were assault with an act of indecency.
These offences each involve contraventions of s 61 L of the Crimes Act. The…

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 Bourke (a pseudonym)

Details

AGLC: R v Bourke (a pseudonym) [2020] NSWDC 10
Case: [2020] NSWDC 10
Decision Date: 14 February 2020

CaseChat Overview and Summary

The case of R v Bourke involved the appellant, Bourke, who was convicted on multiple charges including sexual intercourse with a person over the age of 14 but under 16, sexual intercourse without consent, assault with an act of indecency, common assault, threatened use of an offensive weapon with intent to commit an indictable offence, intimidation, larceny, and destroying or damaging property. The case was heard in the Court of Appeal.

The court was required to determine the appropriate sentence for Bourke, taking into account the seriousness of the offences committed, the need for general and specific deterrence, and the need for denunciation. The court also considered the appellant's personal circumstances, including his background and any mitigating factors. The court needed to balance the appellant's culpability with the need to protect the community and ensure that the sentence was just and proportionate.

The court found that the offences committed by Bourke were of a serious nature and warranted a significant term of imprisonment. The court noted the appellant's criminal history and the level of planning and premeditation involved in the offences. The court also considered the impact of the offences on the victims and the community. After taking all of these factors into account, the court determined that an aggregate term of imprisonment of 16 years and 6 months with a non-parole period of 12 years was appropriate.

The court ordered that Bourke be imprisoned for an aggregate term of 16 years and 6 months, with a non-parole period of 12 years. The court noted that this sentence reflected the seriousness of the offences and the need to protect the community. The court also noted that the sentence provided an opportunity for Bourke to reflect on his actions and work towards rehabilitation.

Orders

Orders of the court

Aggregate term of imprisonment of 16 years and 6 months with a non-parole period of 12 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 Bourke (a pseudonym) [2020] NSWDC 10
Hearing dates:	16 December 2019
Decision date:	14 February 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 16 years and 6 months with a non-parole period of 12 years.
Catchwords:	CRIME - SENTENCE - sexual intercourse with person above 14 years of age but less than 16 years of age - sexual intercourse without consent - assault with act of indecency - common assault - threatened use of an offensive weapon with intent to commit an indictable offence - intimidation - larceny - destroying or damaging property.
Legislation Cited:	Crimes Act 1900 (NSW): ss66C(3), 61I, 61L, 61, 32b(1)(a), 117, 195(1)(a); Crimes (Domestic and Personal Violence) Act 2007: s13(1)
Cases Cited:	Bugmy v R [2013] 249 CLR 571
Category:	Sentence
Parties:	Regina (Crown) Mr Bourke (a pseudonym) (Offender)
Representation:	Mr Page (Trial Advocate) Mr Rajalingam (Counsel for the offender)
File Number(s):	2017/389374
Publication restriction:	Non - publication order made of the offender and the victims and any other information which might directly or indirectly identify any of them