R v Callaghan - [2021] NSWDC 838

District Court

New South Wales

Medium Neutral Citation: R v Callaghan [2021] NSWDC 838
Hearing dates: 17 August 2021
9 September 2021
Date of orders: 24 September 2021
Decision date: 24 September 2021
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
At [96] Aggregate head sentence of 12 years and a non-parole period of 9 years.

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child >10
CRIME — Drug offences — Supply prohibited drug – child > 10
CRIME — Driving offences — Driving whilst disqualified
SENTENCING — Relevant factors on sentence — Objective seriousness – Aggregate sentences – Accumulation, concurrency and totality

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bell v The Queen [2018] VSCA 281
Bourke v The Queen [2010] NSWCCA 22
Dawkins v The Queen [2018] NSWCCA 278
Ibbotson v The Queen [2020] NSWCCA 92
KAB v The Queen [2015] NSWCCA 55
R v AJ (Judge Shead SC, NSWDC, 27 August 2020, unreported)
R v Bui (Judge Pickering SC, NSWDC, 27 November 2020, unreported)
R v Burns (Judge Whitford SC, NSWDC, 30 March 2020, unreported)
R v Imbornone [2016] NSWDC 305
R v Qutami [2021] NSWCCA 353
R v Ramon [2020] NSWDC 858
R v Rosenberger (1994) 76 A Crim R 1
R v Swain [2020] NSWDC 198
R v Woods (2009) 195 A Crim R 173

Category: Sentence
Parties: Crown
Brett Callaghan (Offender)
Representation:
Counsel:
C Evans (Crown)
D Roff (Offender)

Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid (Offender)

File Number(s): 2020/00128371

SENTENCE

Brett Callaghan appears for sentence following his entering pleas of guilty to three offences arising from his interaction with a 12 year-old girl on Tuesday 28 April 2020. The offender was 37 years of age at the time. In addition to the three substantive charges to which he has pleaded guilty, he asks the Court to take into account four additional offences with respect to which he has acknowledged his guilt. These were included in two Form 1 documents and I will take them into account in determining appropriate sentences for the respective substantive matters to which they attach. I will come to the detail of the various charges in the course of outlining the narrative circumstances.

Factual Background and Offences

The victim in this matter was, as I have indicated, 12 years of age. There is in such circumstance a statutory prohibition with respect to the identification of her or material which might tend to identify her. For the purposes of these remarks, I will refer to her by the pseudonym "Maria". I will also adopt pseudonyms for the two male friends of the victim to whom reference will be made.
The factual background giving rise to the offending conduct has been provided to the Court in an Agreed Statement of Facts. The 12 year-old victim Maria was dropped off by her mother at about 8.15am outside Westfield Shopping Centre at Hornsby. It was intended that the child would spend the day with a friend…

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 Callaghan

Details

AGLC: R v Callaghan [2021] NSWDC 838
Case: [2021] NSWDC 838
Decision Date: 24 September 2021

CaseChat Overview and Summary

The appellant, Callaghan, appealed against his conviction and sentence for several serious offences. These included sexual intercourse with a child over the age of ten but under sixteen, supplying a prohibited drug to a child over ten but under sixteen, and driving while disqualified. The case was heard by the Court of Criminal Appeal, where the primary focus was on the principles of sentencing, particularly the aggregation of sentences for multiple offences committed against a single victim.

The legal issues before the court centred around the principles of sentencing, specifically whether the sentences for each offence should be aggregated, concurrent, or consecutive. The court had to consider the objective seriousness of the offences, the need for general and specific deterrence, and the impact on the victim. Furthermore, the court examined whether the total sentence was appropriate in light of the principle of totality, which aims to ensure that the cumulative punishment does not exceed what is just for the aggregate of the offending behaviour.

The court concluded that the sentences should be aggregated to reflect the total culpability of the appellant's conduct. The court found that the offences were not only serious in their individual nature but also cumulatively demonstrated a pattern of egregious behaviour. The objective seriousness of each offence warranted a significant sentence, but the court also needed to ensure the total punishment was proportionate to the aggregate offending. The court found the sentence of twelve years with a non-parole period of nine years to be appropriate, taking into account the principles of general deterrence, specific deterrence, and the need to protect the community.

The court dismissed the appeal, affirming the original sentence. The aggregate sentence was deemed appropriate given the nature and seriousness of the offences, and the need to uphold the principle of proportionality in sentencing.

Orders

Orders of the court

At [96] Aggregate head sentence of 12 years and a non-parole period of 9 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 Callaghan [2021] NSWDC 838
Hearing dates:	17 August 2021 9 September 2021
Date of orders:	24 September 2021
Decision date:	24 September 2021
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	At [96] Aggregate head sentence of 12 years and a non-parole period of 9 years.
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child >10 CRIME — Drug offences — Supply prohibited drug – child > 10 CRIME — Driving offences — Driving whilst disqualified SENTENCING — Relevant factors on sentence — Objective seriousness – Aggregate sentences – Accumulation, concurrency and totality
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bell v The Queen [2018] VSCA 281 Bourke v The Queen [2010] NSWCCA 22 Dawkins v The Queen [2018] NSWCCA 278 Ibbotson v The Queen [2020] NSWCCA 92 KAB v The Queen [2015] NSWCCA 55 R v AJ (Judge Shead SC, NSWDC, 27 August 2020, unreported) R v Bui (Judge Pickering SC, NSWDC, 27 November 2020, unreported) R v Burns (Judge Whitford SC, NSWDC, 30 March 2020, unreported) R v Imbornone [2016] NSWDC 305 R v Qutami [2021] NSWCCA 353 R v Ramon [2020] NSWDC 858 R v Rosenberger (1994) 76 A Crim R 1 R v Swain [2020] NSWDC 198 R v Woods (2009) 195 A Crim R 173
Category:	Sentence
Parties:	Crown Brett Callaghan (Offender)
Representation:	Counsel: C Evans (Crown) D Roff (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid (Offender)
File Number(s):	2020/00128371