R v CF

Case [2023] NSWDC 452 25 October 2023

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District Court

New South Wales

Medium Neutral Citation: R v CF [2023] NSWDC 452
Hearing dates: 16 October 2023
Decision date: 25 October 2023
Jurisdiction: Criminal
Before: Coleman SC DCJ
Decision:
(1) For the offences of which he was found guilty, the offender is convicted.
(2) The offender is sentenced to an aggregate term of imprisonment for a period of 14 years, with a non-parole period of 8 years and 10 months, to date from 7 December 2022. The first date the offender is eligible for release to parole is 6 October 2031. The head sentence will expire on 6 December 2036.
(3) The indicative sentence and indicative non-parole periods (where relevant) are as follows:
• Count 1: 18 months imprisonment, with a non-parole period of 11 months
• Count 2: 18 months imprisonment, with a non-parole period of 11 months
• Count 3: 6 years imprisonment
• Count 4: 18 months imprisonment, with a non-parole period of 11 months
• Count 5: 2 years 6 months imprisonment
• Count 6: 5 years imprisonment
• Count 7: 5 years imprisonment

Catchwords:
CRIME – Child sex offences – Multiple offences – Indecent assault – Sexual intercourse with child >10<14 – Circumstances of aggravation – Sexual intercourse with young person under special care – Sentencing following trial

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M, 66C, 73
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21B, 25AA, 53A, 54B, Sch 2, Pt 35, Item 95
Crimes (Sentencing Procedure) Amendment Act 2022 (NSW)

Cases Cited:
Bravo v R [2015] NSWCCA 302
BT v R [2010] NSWCCA 276
Cheung v R (2001) 209 CLR 1
Filippou v The Queen (2015) 256 CLR 47
Johnson v The Queen [2004] HCA 15
Leach v The Queen (2007) 230 CLR 1
R v Cattell [2019] NSWCCA 297
R v Chan [2000] NSWCCA 345
R v Cranston [2023] NSWSC 1004
R v Edwards (1996) 90 A Crim R 510
R v Gavel [2014] NSWCCA 56
R v Isaacs (1997) 41 NSWLR 374
R v MAK [2006] NSWCCA 381
RH McL v The Queen (2000) 203 CLR 452
Savvas v The Queen (1995) 183 CLR 1
Skocic v R [2014] NSWCCA 225
Strbak v The Queen (2020) 267 CLR 494
The Queen v Olbrich (1999) 199 CLR 270
Weininger v The Queen (2003) 212 CLR 629

Category: Sentence
Parties: Director for Public Prosecutions (NSW) (Crown)
CF (Offender)
Representation:
Counsel:
D Henschell, Solicitor Advocate (Crown)
M Davis (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Michel + White Lawyers (Offender)

File Number(s): 2020/00111550
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is a statutory non-publication order in regard to any matter which identifies the complainant or which is likely to lead to the identification of the complainant. The identity of the offender is anonymised as CF.

JUDGMENT

The offender, who will be referred to as CF, appears for sentence today after being found…

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 CF

Details

AGLC: R v CF [2023] NSWDC 452
Case: [2023] NSWDC 452
Decision Date: 25 October 2023

CaseChat Overview and Summary

In the case of R v CF, the offender was convicted of multiple child sex offences. The victim in this case was a child over the age of 10 but under 14. The case was heard and determined in the Supreme Court of the relevant jurisdiction. The primary dispute in the case centred around the nature and severity of the offences committed by the offender against the child, and the appropriate sentence that should be imposed in light of the gravity of these offences.

The court was required to decide several key legal issues. These included determining the precise nature and extent of each offence, and how these offences should be aggregated for sentencing purposes. The court also needed to consider the principles of sentencing in child sex offences, including the importance of deterrence, denunciation, and the protection of the community. Additionally, the court had to assess the offender's culpability, the circumstances of each offence, and the impact of the offences on the victim.

The court carefully considered the evidence and submissions from both parties, ultimately concluding that the offender was guilty of the multiple offences as charged. The court then proceeded to impose an aggregate sentence of 14 years imprisonment, with a non-parole period of 8 years and 10 months. The court assigned specific indicative sentences and non-parole periods for each of the counts, taking into account the severity and nature of each offence. The court's decision was based on the need to appropriately reflect the seriousness of the crimes committed against a vulnerable victim, while also considering the principles of sentencing applicable in such cases.

The final orders of the court included the imposition of an aggregate sentence for the offences committed, with specific details provided for each count. The court also set the non-parole period and determined the first eligibility date for parole. This detailed sentencing approach ensures that the sentence imposed is both just and appropriate for the offences committed.

Orders

Orders of the court

(1) For the offences of which he was found guilty, the offender is convicted.

(2) The offender is sentenced to an aggregate term of imprisonment for a period of 14 years, with a non-parole period of 8 years and 10 months, to date from 7 December 2022. The first date the offender is eligible for release to parole is 6 October 2031. The head sentence will expire on 6 December 2036.

(3) The indicative sentence and indicative non-parole periods (where relevant) are as follows:

• Count 1: 18 months imprisonment, with a non-parole period of 11 months

• Count 2: 18 months imprisonment, with a non-parole period of 11 months

• Count 3: 6 years imprisonment

• Count 4: 18 months imprisonment, with a non-parole period of 11 months

• Count 5: 2 years 6 months imprisonment

• Count 6: 5 years imprisonment

• Count 7: 5 years imprisonment

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

R v CF [2023] NSWDC 452

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Cranston [2023] NSWSC 1004
Citation 1 (Para 2)

…In sentencing an offender after a verdict, the relevant principles were recently set out by Payne JA in R v Cranston [2023] NSWSC 1004 at [3] as follows:…
Strbak v The Queen [2020] HCA 10
Citation 2 (Para 4)

…ities: Olbrich at [27]-[28]; Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41]; Filippou at [64], [66]; Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [32];…
R v Cattell [2019] NSWCCA 297
Citation 3 (Para 32)

…In respect to the counts to which s 25AA does apply, I have been referred to the decision of the Court of Criminal Appeal in R v Cattell [2019] NSWCCA 297, where Price J (with whom Hoeben CJ in CL and Campbell J agreed) said at [123]:…
Bravo v R [2015] NSWCCA 302
Citation 4 (Para 105)

…d deleterious effect on the victims for many years, if not the whole of their lives. Psychological damage may follow (see the discussion in Bravo v R [2015] NSWCCA 302 at [48] and the authorities there cited). This is so for the offences the subject of s 21B and to those that aren’t. I do not understand sentencing p…
Filippou v The Queen [2015] HCA 29
Citation 5 (Para 2)

…In that case, the sentencer must leave that matter to one side and proceed on the basis of what can be found: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70];…
Skocic v R [2014] NSWCCA 225
Citation 6 (Para 51)

…his submissions statistics from the NSW Sentencing Council but notes, as I do, the caution on using sentencing statistics as set out in Skocic v R [2014] NSWCCA 225 at [19]-[20].…
R v Gavel [2014] NSWCCA 56
Citation 7 (Para 35)

…the victim. This includes that such offences will have a profound effect on the child victim for many years, if not their whole lives (see R v Gavel [2014] NSWCCA 56 at [110]).…
Smaragdis v R [2010] NSWCCA 276
Citation 8 (Para 34)

…ection is difficult by reason of the “absurd relativity” between the 7-year maximum penalty and the 5-year standard non-parole period (see BT v R [2010] NSWCCA 276 at [41] per R S Hulme J).…
Leach v The Queen [2007] HCA 3
Citation 9 (Para 4)

…offender seeks to rely on a fact, the standard of proof is on the balance of probabilities: Olbrich at [27]-[28]; Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41]; Filippou at [64], [66]; Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [32];…
R v MAK [2006] NSWCCA 381
Citation 10 (Para 116)

…r all of the offences and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.…
Johnson v The Queen [2004] HCA 15
Citation 11 (Para 116)

…behaviour of the offender, ask myself what is the appropriate sentence for all of the offences and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.…
Weininger v The Queen [2003] HCA 14
Citation 12 (Para 1)

…to the issues that will inform the sentence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1]; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [16]-[17]; R v Isaacs (1997) 41 NSWLR 374 at 378;…
Cheung v The Queen [2001] HCA 67
Citation 13 (Para 5)

…erdict of guilty, the sentencer is constrained to making findings of fact that are consistent with the jury’s verdict: Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [14], approving Isaacs at 376-377;…
R H McL v The Queen [2000] HCA 46
Citation 14 (Para 116)

…elf what is the appropriate sentence for all of the offences and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.…
R v Chan [2000] NSWCCA 345
Citation 15 (Para 117)

…sure that the ultimate sentence imposed is appropriate for the totality of the offending and to the offender’s personal circumstances: see R v Chan [2000] NSWCCA 345.…
R v Olbrich [1999] HCA 54
Citation 16 (Para 1)

…as a duty to make, as far as possible, findings of fact relevant to the issues that will inform the sentence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1]; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [16]-[17]; R v Isaacs (1997) 41 NSWLR 374 at 378;…
Savvas v R [1995] HCA 29
Citation 17 (Para 7)

…Within this constraint, the sentencer can make findings as they see fit: Savvas v The Queen (1995) 183 CLR 1 at 8. There is no requirement to accept all of the Crown’s case as put to the jury: Cheung at [7]. Nor is the judge required to take a view of the facts most favourable to the offender: Isaacs at 377D.…
The Queen v Olbrich [1999] HCA 5418
Citation 18 (Para 1)

…A sentencing judge has a duty to make, as far as possible, findings of fact relevant to the issues that will inform the sentence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1]; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [16]-[17]; R v Isaacs (1997) 41 NSWLR 374 at 378;…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 21A, 21B, 25AA, 3A, 53A, 54B
7 mentions (from Para 30)
Crimes Act 1900 (ACT) 61M, 66C, 73
4 mentions (from Para 1)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention

Medium Neutral Citation:	R v CF [2023] NSWDC 452
Hearing dates:	16 October 2023
Decision date:	25 October 2023
Jurisdiction:	Criminal
Before:	Coleman SC DCJ
Decision:	(1) For the offences of which he was found guilty, the offender is convicted. (2) The offender is sentenced to an aggregate term of imprisonment for a period of 14 years, with a non-parole period of 8 years and 10 months, to date from 7 December 2022. The first date the offender is eligible for release to parole is 6 October 2031. The head sentence will expire on 6 December 2036. (3) The indicative sentence and indicative non-parole periods (where relevant) are as follows: • Count 1: 18 months imprisonment, with a non-parole period of 11 months • Count 2: 18 months imprisonment, with a non-parole period of 11 months • Count 3: 6 years imprisonment • Count 4: 18 months imprisonment, with a non-parole period of 11 months • Count 5: 2 years 6 months imprisonment • Count 6: 5 years imprisonment • Count 7: 5 years imprisonment
Catchwords:	CRIME – Child sex offences – Multiple offences – Indecent assault – Sexual intercourse with child >10<14 – Circumstances of aggravation – Sexual intercourse with young person under special care – Sentencing following trial
Legislation Cited:	Crimes Act 1900 (NSW), ss 61M, 66C, 73 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21B, 25AA, 53A, 54B, Sch 2, Pt 35, Item 95 Crimes (Sentencing Procedure) Amendment Act 2022 (NSW)
Cases Cited:	Bravo v R [2015] NSWCCA 302 BT v R [2010] NSWCCA 276 Cheung v R (2001) 209 CLR 1 Filippou v The Queen (2015) 256 CLR 47 Johnson v The Queen [2004] HCA 15 Leach v The Queen (2007) 230 CLR 1 R v Cattell [2019] NSWCCA 297 R v Chan [2000] NSWCCA 345 R v Cranston [2023] NSWSC 1004 R v Edwards (1996) 90 A Crim R 510 R v Gavel [2014] NSWCCA 56 R v Isaacs (1997) 41 NSWLR 374 R v MAK [2006] NSWCCA 381 RH McL v The Queen (2000) 203 CLR 452 Savvas v The Queen (1995) 183 CLR 1 Skocic v R [2014] NSWCCA 225 Strbak v The Queen (2020) 267 CLR 494 The Queen v Olbrich (1999) 199 CLR 270 Weininger v The Queen (2003) 212 CLR 629
Category:	Sentence
Parties:	Director for Public Prosecutions (NSW) (Crown) CF (Offender)
Representation:	Counsel: D Henschell, Solicitor Advocate (Crown) M Davis (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Michel + White Lawyers (Offender)
File Number(s):	2020/00111550
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is a statutory non-publication order in regard to any matter which identifies the complainant or which is likely to lead to the identification of the complainant. The identity of the offender is anonymised as CF.