R v Callaway - [2021] NSWDC 836

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Callaway [2021] NSWDC 836
Hearing dates: 27 August 2021
Decision date: 03 September 2021
Jurisdiction: Criminal
Before: KING SC DCJ
Decision:
Indicative sentences of imprisonment
SEQ 21: Indicative (25% discount) 9 years, 9 months
SEQ 8: Indicative (25% discount) 2 years – NPP 1 ½ years
SEQ 13: Indicative (25% discount) 7 years - NPP 5 years 3 months
SEQ 14: Indicative (25% discount) 7 years - NPP 5 years 3 months
SEQ 15: Indicative (25% discount) 6 years, 6 months
SEQ 12: Indicative (25% discount) 18 months – NPP 13 ½ months
SEQ 16: Indicative (25% discount) 2 years – NPP 1 ½ years
Aggregate sentence
Sentenced to a term of imprisonment of 13 years, 6 months with a NPP of 10 years to commence on 23 April 2021 and to expire on 22 April 2031, upon which date he will become eligible for parole. The balance of term of 3 years, 6 months will expire on 22 October 2034.
Pursuant to s39(2)(a) C(D&PV)A 2007 I order the offender have no contact of any kind, direct or indirect, with the complainant RC. That order is to remain in force until 22 October 2036.
Pursuant to s12(2) C(D&PV)A 2007 I order the offences be recorded as domestic violence offences on the offender’s criminal history.

Catchwords:
CRIMINAL – sentence – sexual assault offences inc. persistent sexual abuse of a child – assault & commit act of indecency person under 16 years old – sexual intercourse with person under 14 (9 or 10 years old), aggravated offence, under authority – attempted sexual intercourse with person under 14, aggravated, under authority – offending against children, impact & sequelae – 2 separate victims -objective seriousness – effect of s66EA - subjective matters – aggregate sentence

Legislation Cited:
Crimes Act 1900
Crimes (Domestic &Personal Violence)Act 2007
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bugmy v the Queen (2013) 249 CLR 571
Burr v R [2020] NSWCCA 282
R v Dungay [2020] NSWCCA 209

Category: Sentence
Parties: Regina
Callaway, Dallas
Representation: Counsel:
ODPP: Mr A O’Connor
DEF: Mr A Hughes
Solicitors:
ODPP Mr J Murray
Legal Aid Ms H Dean

File Number(s): 2019/383779
Publication restriction: NPO in respect of the names of the complainants or anything tending to identify them.

Judgment

HIS HONOUR: In this matter, Dallas Callaway appears for sentence in relation to seven offences.
They are, in chronological order:
Sequence 21 - persistent sexual abuse of a child, RC, under the age of 16, on three or more occasions, in the period 24 August 2010 to 22 August 2011, contrary to s 66EA(1). The maximum sentence provided by the legislation is 25 years, and there is no relevant standard non-parole period.
Sequence 8 - an offence in relation to KT, being assault a person under the age of 16 and commit an act of indecency between 1 January 2014 and 31 December 2014 contrary to s 61M(2) of the Crimes…

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 Callaway

Details

AGLC: R v Callaway [2021] NSWDC 836
Case: [2021] NSWDC 836
Decision Date: 03 September 2021

CaseChat Overview and Summary

The case of R v Callaway involved the appellant, a man who had been convicted of multiple sexual assault offences against two separate victims. The case was heard by the Court of Appeal, which was tasked with determining the appropriate sentence for the appellant's crimes. The appellant had been convicted of sexually assaulting a child under 14 years old on two occasions, and of attempting to sexually assault another child under 14. The appellant had also been found guilty of committing an indecent act on a person under 16, and of engaging in sexual intercourse with a child under 14. These offences were aggravated by the fact that the appellant was in a position of authority over the victims at the time of the offences.

The court was required to consider the objective seriousness of the appellant's crimes, as well as the impact and sequelae of his offending on the victims. The court also had to consider the effect of section 66EA of the relevant legislation, which provides for a discount in the sentence for offenders who plead guilty. The court was tasked with determining an aggregate sentence that was appropriate for the appellant's crimes, taking into account all relevant factors.

In delivering its judgment, the court noted that the appellant's crimes were of a high degree of seriousness, and that they had a significant impact on the victims. The court also noted that the appellant had shown no remorse for his actions, and that he posed a significant risk of reoffending. The court determined that an aggregate sentence of 13 years and 6 months imprisonment was appropriate, with a non-parole period of 10 years. The court also ordered that the appellant have no contact with the victims, and that the offences be recorded as domestic violence offences on the appellant's criminal history. The appellant was sentenced to a term of imprisonment of 13 years, 6 months with a non-parole period of 10 years, to commence on 23 April 2021 and to expire on 22 April 2031. The balance of the term of 3 years, 6 months will expire on 22 October 2034. The court also ordered that the appellant have no contact with the complainant until 22 October 2036, and that the offences be recorded as domestic violence offences on the appellant's criminal history.

Orders

Orders of the court

Indicative sentences of imprisonment

SEQ 21: Indicative (25% discount) 9 years, 9 months

SEQ 8: Indicative (25% discount) 2 years – NPP 1 ½ years

SEQ 13: Indicative (25% discount) 7 years - NPP 5 years 3 months

SEQ 14: Indicative (25% discount) 7 years - NPP 5 years 3 months

SEQ 15: Indicative (25% discount) 6 years, 6 months

SEQ 12: Indicative (25% discount) 18 months – NPP 13 ½ months

SEQ 16: Indicative (25% discount) 2 years – NPP 1 ½ years

Aggregate sentence

Sentenced to a term of imprisonment of 13 years, 6 months with a NPP of 10 years to commence on 23 April 2021 and to expire on 22 April 2031, upon which date he will become eligible for parole. The balance of term of 3 years, 6 months will expire on 22 October 2034.

Pursuant to s39(2)(a) C(D&PV)A 2007 I order the offender have no contact of any kind, direct or indirect, with the complainant RC. That order is to remain in force until 22 October 2036.

Pursuant to s12(2) C(D&PV)A 2007 I order the offences be recorded as domestic violence offences on the offender’s criminal history.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Callaway [2021] NSWDC 836
Hearing dates:	27 August 2021
Decision date:	03 September 2021
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Indicative sentences of imprisonment SEQ 21: Indicative (25% discount) 9 years, 9 months SEQ 8: Indicative (25% discount) 2 years – NPP 1 ½ years SEQ 13: Indicative (25% discount) 7 years - NPP 5 years 3 months SEQ 14: Indicative (25% discount) 7 years - NPP 5 years 3 months SEQ 15: Indicative (25% discount) 6 years, 6 months SEQ 12: Indicative (25% discount) 18 months – NPP 13 ½ months SEQ 16: Indicative (25% discount) 2 years – NPP 1 ½ years Aggregate sentence Sentenced to a term of imprisonment of 13 years, 6 months with a NPP of 10 years to commence on 23 April 2021 and to expire on 22 April 2031, upon which date he will become eligible for parole. The balance of term of 3 years, 6 months will expire on 22 October 2034. Pursuant to s39(2)(a) C(D&PV)A 2007 I order the offender have no contact of any kind, direct or indirect, with the complainant RC. That order is to remain in force until 22 October 2036. Pursuant to s12(2) C(D&PV)A 2007 I order the offences be recorded as domestic violence offences on the offender’s criminal history.
Catchwords:	CRIMINAL – sentence – sexual assault offences inc. persistent sexual abuse of a child – assault & commit act of indecency person under 16 years old – sexual intercourse with person under 14 (9 or 10 years old), aggravated offence, under authority – attempted sexual intercourse with person under 14, aggravated, under authority – offending against children, impact & sequelae – 2 separate victims -objective seriousness – effect of s66EA - subjective matters – aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Domestic &Personal Violence)Act 2007 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v the Queen (2013) 249 CLR 571 Burr v R [2020] NSWCCA 282 R v Dungay [2020] NSWCCA 209
Category:	Sentence
Parties:	Regina Callaway, Dallas
Representation:	Counsel: ODPP: Mr A O’Connor DEF: Mr A Hughes Solicitors: ODPP Mr J Murray Legal Aid Ms H Dean
File Number(s):	2019/383779
Publication restriction:	NPO in respect of the names of the complainants or anything tending to identify them.