R v CB - [2021] NSWDC 800

District Court

New South Wales

Medium Neutral Citation: R v CB [2021] NSWDC 800
Hearing dates: 23 November 2021
Date of orders: 23 November 2021
Decision date: 23 November 2021
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate term of imprisonment of ten years with a non-parole period of five years and six months: at [65].

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child <10 — Sexual intercourse with child >10 <14 — Indecent assault
SENTENCING — Aggravating factors — Home of victim or any other person — Presence of child — Use of violence
SENTENCING — Mitigating factors — No record of previous convictions
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Circumstances of offence — Deterrence — General principles — Maximum penalty — Moral culpability — Multiple offences — Crushing sentence — Objective seriousness — Purposes of sentencing
SENTENCING — Subjective considerations on sentence — Age of offender — Special circumstances

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

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Elturk v The Queen [2014] NSWCCA 61
KT v R [2008] NSWCCA 51
McLaren v The Queen [2012] NSWCCA 284
R v KNL [2005] NSWCCA 260
Rakielbakour v DPP [2020] NSWSC 323

Category: Sentence
Parties:
Regina (Office of the Director of Public Prosecutions)
CB (Offender)
Representation:
Mr C Young (Crown Prosecutor, Office of the Director of Public Prosecutions
Ms T Evers (Counsel for the Offender)

File Number(s): 2018/1523
Publication restriction: STATUTORY NON-PUBLICATION APPLIES
Any matter which may identify the complainants or identify any minor witnesses, including the accused’s name: s 578A Crimes Act 1900; s 15A Children (Criminal Proceedings) Act 1987

Judgment

CB was found guilty by a jury of 13 counts after a trial in Newcastle in July and August 2021. He expresses no remorse and continues to assert that he is not guilty of the offences. All of the offences relate to him engaging in indecent and sexual acts with three victims who were the foster children of his mother. The offending occurred between 2004 and 2014.
The offender was arrested on 7 February 2018.
With the final orders there will be a schedule setting out the statutory provision under which each count was brought, the maximum penalty, were applicable, the standard non-parole period, the age of the victim, the age of the offender at the time, a brief description of the offending conduct and my finding as to objective seriousness of each offence. See Annexure 1 (97828, pdf)
In short, the offender was found guilty of the following offences:

Count 1, an offence contrary to s 61M(2) of the Crimes Act 1900 of indecent assault of a child under ten. The offence carries a maximum penalty of ten years with a standard non-parole period of five years, but it is not applicable because he was under 18 at the time.

There are nine counts (Counts 2, 4 – 8, 10 – 12) contrary to…

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 CB

Details

AGLC: R v CB [2021] NSWDC 800
Case: [2021] NSWDC 800
Decision Date: 23 November 2021

CaseChat Overview and Summary

In the matter of R v CB, the respondent stood accused of multiple instances of sexual intercourse with a child under the age of ten. The case was heard and determined by the Supreme Court of Queensland. The respondent, CB, was found guilty on several counts and faced sentencing. The primary legal issues the court needed to address involved the aggravating and mitigating factors surrounding the offences, as well as the appropriate penalty to impose.

The court considered various aggravating factors, including the fact that the crimes were committed in the victim's home, where another child was present, and that violence was used. These factors significantly increased the moral culpability of the respondent. On the other hand, the court acknowledged the mitigating factor of CB's lack of a prior criminal record. The court also took into account the principles of sentencing, including deterrence, the general principles of punishment, the maximum penalty available, and the purpose of sentencing. The court balanced these considerations against the subjective factors, such as the age of the offender and any special circumstances, to arrive at an appropriate sentence.

In arriving at its decision, the court thoroughly analysed the objective seriousness of the offences and the need to protect the community and deter similar conduct. The court also emphasised the importance of considering the specific circumstances of the case, including the impact on the victim and the community. Ultimately, the court determined that an aggregate term of imprisonment of ten years was appropriate, with a non-parole period of five years and six months. This sentence reflects the gravity of the crimes while also considering the mitigating factors present in the case.

Orders

Orders of the court

An aggregate term of imprisonment of ten years with a non-parole period of five years and six months: at [65].

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 CB [2021] NSWDC 800
Hearing dates:	23 November 2021
Date of orders:	23 November 2021
Decision date:	23 November 2021
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of ten years with a non-parole period of five years and six months: at [65].
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child <10 — Sexual intercourse with child >10 <14 — Indecent assault SENTENCING — Aggravating factors — Home of victim or any other person — Presence of child — Use of violence SENTENCING — Mitigating factors — No record of previous convictions SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Circumstances of offence — Deterrence — General principles — Maximum penalty — Moral culpability — Multiple offences — Crushing sentence — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Age of offender — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Elturk v The Queen [2014] NSWCCA 61 KT v R [2008] NSWCCA 51 McLaren v The Queen [2012] NSWCCA 284 R v KNL [2005] NSWCCA 260 Rakielbakour v DPP [2020] NSWSC 323
Category:	Sentence
Parties:	Regina (Office of the Director of Public Prosecutions) CB (Offender)
Representation:	Mr C Young (Crown Prosecutor, Office of the Director of Public Prosecutions Ms T Evers (Counsel for the Offender)
File Number(s):	2018/1523
Publication restriction:	STATUTORY NON-PUBLICATION APPLIES Any matter which may identify the complainants or identify any minor witnesses, including the accused’s name: s 578A Crimes Act 1900; s 15A Children (Criminal Proceedings) Act 1987