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R v Carr (a pseudonym)

R v Carr (a pseudonym)

Case [2019] NSWDC 805 27 September 2019

Sentencing

Attempted Sexual Intercourse

Retribution

Deterrence

Victim Impact Statement

Remorse

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Carr (a pseudonym) [2019] NSWDC 805
Hearing dates: 27 September 2019
Date of orders: 27 September 2019
Decision date: 27 September 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of eight years and six months with a non parole period of five years and six months. For orders see [84] – [86]

Catchwords:
SENTENCING – Indecent assault – attempt sexual intercourse father and daughter aged 11 or 12.
SENTENCING – Relevant factors on sentence – late guilty plea – delay in complaint – representative counts – Form 1 – assessment of objective seriousness – relevant factors – Victim Impact Statement considered – application s 25AA Crimes (Sentencing Procedure) Act – relevant principles – retribution and deterrence – delay in sentencing given delay– offender’s complex history – history of deprivation – offender’s father an abuser – expressions of remorse – impact of imprisonment – accumulation concurrence – totality principle applied – special circumstances found.

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

Cases Cited:
AJB v R (2007) 169 A Crim R 32
Attorney General’s Application No. 1: (2002) 56 NSWLR 146
Bugmy v the Queen [2013] HCA 37; (2013) 249 CLR 571
Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41
DPP v De La Rosa [2010] NSWCCA 111
Grube v R [2005] NSWCCA 140
Markarian v The Queen (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497
MPB v R [2013] NSWCCA 213
Postiglione v The Queen (1997) 189 CLR 295
R v Burrell (2000) 114 A Crim R 207
R v Engert (1995) 84 A Crim R 67
R v Herring (1956) 73 WN (NSW) 203
R v MJR (2002) 54 NSWLR 368
R v Moon [2000] NSWCCA 534
R v Anderson [1981] VR 155; (1980) 2 A Crim R 379
R v Todd [1982] 2 NSWLR 517
R v Todd [1982] 2 NSWLR 517
Ryan v The Queen (2001) 206 CLR 267
The Queen v Pham [2015] HCA 39
Thompson (2000) 49 NSWLR 383
Weininger v The Queen (2003) 212 CLR 629
Wright v R [2008] NSWCCA 91

Category: Sentence
Parties: Stephen Carr (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr S Fraser, Public Defenders NSW (for the Offender)
Solicitors:
Johnston Legal (for the Offender)
Ms J Walshe (for the Director of Public Prosecutions)

File Number(s): 2018/00348422
Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of any child.Pseudonyms have been used for the name of the complainant and the offender.

Judgment – ex TEMPORE REVISED

Introduction

In mid-July 2019, Wollongong District Court held a special call over of all the trials in our list. Stephen Carr’s trial had been listed…

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 Carr (a pseudonym)

Details

AGLC: R v Carr (a pseudonym) [2019] NSWDC 805
Case: [2019] NSWDC 805
Decision Date: 27 September 2019

CaseChat Overview and Summary

The case of R v Carr (a pseudonym) involved a sentencing hearing for a man convicted of indecent assault and attempted sexual intercourse with his daughter, who was aged 11 or 12 at the time of the offence. The matter was heard in the Supreme Court of New South Wales. The legal issues before the court were the assessment of the objective seriousness of the offences, the consideration of various relevant factors for sentencing, and the determination of an appropriate aggregate sentence in light of the offender's history and expressions of remorse.

The court began by evaluating the objective seriousness of the offences, taking into account the nature of the assault and the vulnerable position of the victim. It considered the late guilty plea and the delay in the complaint, which were relevant factors for sentencing. The court also assessed the impact of the offences on the victim, as evidenced by the Victim Impact Statement. Additionally, the court examined the offender's complex history, including a background of deprivation and abuse, as well as his expressions of remorse. The court found that special circumstances were present due to the offender's father being an abuser, and it applied the principles of retribution and deterrence in determining the appropriate sentence.

After weighing all the relevant factors, the court concluded that an aggregate sentence of eight years and six months was appropriate, with a non-parole period of five years and six months. This decision reflected the objective seriousness of the offences, the offender's history, and the impact on the victim. The court considered the totality principle and the need for an appropriate deterrent effect. The court also noted the delay in sentencing due to the offender's previous legal proceedings.

The court made specific orders regarding the sentence, including the calculation of the non-parole period and the conditions for parole. These orders are detailed in paragraphs [84] to [86] of the judgment.

Orders

Orders of the court

Aggregate sentence of eight years and six months with a non parole period of five years and six months. For orders see [84] – [86]

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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Citations

AGLC Citation

R v Carr (a pseudonym) [2019] NSWDC 805

Most Recent Citation

Carr v R [2020] NSWCCA 214

Cases citing this decision · 1 of 1 shown

Carr v R
[2020] NSWCCA 214 Para 2

…hter of the Applicant. In sentencing the Applicant in the District Court, his Honour Judge Haesler SC used the same pseudonym: R v Carr (a pseudonym) [2019] NSWDC 805. A similar approach will be taken in the description of the Applicant in the present judgment. The victim is entitled at law not to be identified in…

View all 1 citing cases →

Cases cited in this decision · 16 of 16 shown

R v Pham
[2015] HCA 39 Para 77

…h as this, can help guide the penalty that I must impose and I am required to have regard to it. But as Bell and Gageler JJ noted in The Queen v Pham [2015] HCA 39, “… sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be pre…
Bugmy v The Queen
[2013] HCA 37 Para 79

…ound depravation can compromise a person’s capacity to mature and make mature decisions. It is a relevant factor in mitigation: Bugmy v the Queen [2013] HCA 37; (2013) 249 CLR 571. A pattern of abuse set in train by his father and stepfather has now continued into another generation. Carr’s capacity for self-awa…
MPB v R
[2013] NSWCCA 213 Para 5

…determine whether special circumstances require that the relationship prescribed by s 44 of the Crimes (Sentencing Procedure) Act be varied: MPB v R [2013] NSWCCA 213, at [34] & 35: Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497, at [66] - [71].…
R v El Helou
[2010] NSWCCA 111 Para 60

…en into account at sentencing: R v Anderson [1981] VR 155; (1980) 2 A Crim R 379: s21A 3 (j) Crimes (Sentencing Procedure) Act 1999: DPP v De La Rosa [2010] NSWCCA 111. Sentencing for any offender, but one who has a history such as this offender, calls for what have been regarded as “sensitive discretionary decision…
Wright v R
[2008] NSWCCA 91 Para 44

…e by providing him with the opportunity to demonstrate his capacity for rehabilitation by not offending: AJB v R (2007) 169 A Crim R 32; Wright v R [2008] NSWCCA 91.…
Cahyadi v R
[2007] NSWCCA 1 Para 64

…djusted in an appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, per McHugh J; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41.…
Markarian v The Queen
[2005] HCA 25 Para 32

…. It is not however appropriate to look first at the maximum and then proceed by way of making proportional deductions from it: Markarian v The Queen (2005) 228 CLR 357, at [30].…
R v Grube
[2005] NSWCCA 140 Para 42

…erwise be appropriate. That increase can be substantial, as was pointed out in the Attorney General’s Application No. 1 , at [18] and Grube v R [2005] NSWCCA 140.…
Weininger v The Queen
[2003] HCA 14 Para 82

…horrors inflicted upon others as part of the calculus for converting human behaviour in all its forms into units of punishment: Weininger v The Queen (2003) 212 CLR 629.…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 42

…gnise the need for personal deterrence and retribution for the crimes for sentence: see the guideline judgment Attorney General’s Application No. 1 (2002) 56 NSWLR 146, at [39] – [42]. The matters on the Form 1 here do however operate to increase the sentence that would otherwise be appropriate. That increase can be s…
R v MJK
[2001] NSWCCA 325 Para 34

…chological consequences for the victims of such crimes, and a considered judicial response to changing community attitudes to these crimes: R v MJR (2002) 54 NSWLR 368 at [57].…
Ryan v The Queen
[2001] HCA 21 Para 37

…icit instruction to Courts that harsh or retributive sentences with a focus on both on specific and general deterrence are required: Ryan v The Queen (2001) 206 CLR 267, at [46]; R v Herring (1956) 73 WN (NSW) 203, at [205]. Courts act with the ultimate aim of protecting children from exploitation. A proper sentence…
R v Moon
[2000] NSWCCA 534 Para 5

…equire that the relationship prescribed by s 44 of the Crimes (Sentencing Procedure) Act be varied: MPB v R [2013] NSWCCA 213, at [34] & 35: Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497, at [66] - [71].…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 68

…her trial could be listed at Wollongong District Court. The plea thus had some utilitarian value to the efficiency of the justice system. In Thompson (2000) 49 NSWLR 383, at [3], Spigelman CJ noted that particular cases, especially sexual assault cases and crimes involving children, there is a particular value in avoi…
Postiglione v the Queen
[1997] HCA 26 Para 64

…umulative. The aggregation of all the sentences must be adjusted in an appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, per McHugh J; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41.…
Mill v The Queen
[1988] HCA 70 Para 43

…of the offences calls for a considerable measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517, at 519; Mill v The Queen (1988) 166 CLR 59, at [14].…

Legislation cited in this decision · 3

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 31)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Carr (a pseudonym) [2019] NSWDC 805
Hearing dates:	27 September 2019
Date of orders:	27 September 2019
Decision date:	27 September 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of eight years and six months with a non parole period of five years and six months. For orders see [84] – [86]
Catchwords:	SENTENCING – Indecent assault – attempt sexual intercourse father and daughter aged 11 or 12. SENTENCING – Relevant factors on sentence – late guilty plea – delay in complaint – representative counts – Form 1 – assessment of objective seriousness – relevant factors – Victim Impact Statement considered – application s 25AA Crimes (Sentencing Procedure) Act – relevant principles – retribution and deterrence – delay in sentencing given delay– offender’s complex history – history of deprivation – offender’s father an abuser – expressions of remorse – impact of imprisonment – accumulation concurrence – totality principle applied – special circumstances found.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AJB v R (2007) 169 A Crim R 32 Attorney General’s Application No. 1: (2002) 56 NSWLR 146 Bugmy v the Queen [2013] HCA 37; (2013) 249 CLR 571 Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41 DPP v De La Rosa [2010] NSWCCA 111 Grube v R [2005] NSWCCA 140 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 MPB v R [2013] NSWCCA 213 Postiglione v The Queen (1997) 189 CLR 295 R v Burrell (2000) 114 A Crim R 207 R v Engert (1995) 84 A Crim R 67 R v Herring (1956) 73 WN (NSW) 203 R v MJR (2002) 54 NSWLR 368 R v Moon [2000] NSWCCA 534 R v Anderson [1981] VR 155; (1980) 2 A Crim R 379 R v Todd [1982] 2 NSWLR 517 R v Todd [1982] 2 NSWLR 517 Ryan v The Queen (2001) 206 CLR 267 The Queen v Pham [2015] HCA 39 Thompson (2000) 49 NSWLR 383 Weininger v The Queen (2003) 212 CLR 629 Wright v R [2008] NSWCCA 91
Category:	Sentence
Parties:	Stephen Carr (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defenders NSW (for the Offender) Solicitors: Johnston Legal (for the Offender) Ms J Walshe (for the Director of Public Prosecutions)
File Number(s):	2018/00348422
Publication restriction:	Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of any child.Pseudonyms have been used for the name of the complainant and the offender.