R v Childs - [2022] NSWDC 659

District Court

New South Wales

Medium Neutral Citation: R v Childs [2022] NSWDC 659
Hearing dates: 30 November 2022
01 December 2022
13 December 2022
Date of orders: 16 December 2022
Decision date: 16 December 2022
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
See [135] – [138]

Catchwords:
SENTENCING – plea of guilty – child sexual offences - background of disadvantage – diminishment of moral culpability

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

Cases Cited:
Bugmy v the Queen (2013) 249 CLR 571
Markarian v The Queen [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120
Perkins v R [2018] NSWCCA 62
R v Lau [2022] NSWCCA 131
R v Millwood [2012] NSWCCA 2

Category: Sentence
Parties: Rex (Crown)
Gary John Childs (Offender)
Representation:
Counsel:
A Coulton (Crown)
D Wong (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission (Offender)

File Number(s): 2020/0049122
Publication restriction: Non-publication order in respect of the victims or any information that may tend to identify them.

Judgment

The offender Gary John Childs, born in 1981, is before the court for sentence for seven offences. They are two counts of sexual touching contrary to s66DB(a) of the Crimes Act 1900 (Crimes Act) (sequences 6 and 7) for which the maximum penalty is 10 years imprisonment and for which there is no standard non-parole period, two counts of indecent assault person under 10 years of age contrary to s61M(1) of the Crimes Act (sequences 10 and 11) for which the maximum penalty is 7 years imprisonment and for which there is a standard non-parole period of 5 years, and three counts of indecent assault person under 10 contrary to s61M(2) of the Crimes Act (sequences 17, 19 and 20) for which the maximum penalty is 10 years imprisonment and for which there is a standard non-parole period of 8 years. The offender pleaded guilty to these offences at Nowra Local Court on 6 May 2022.
The agreed facts are as follows:

The offender has no prior criminal history.

At the time of charging, the offender was unemployed and resided in a camper van in the driveway of his father’s home on the South Coast of New South Wales.

Previously, Mr Childs was in a relationship with AB. She had moved to South Coast in 2015 with her three children CD (born in 2004), EF (born in 2007) and GH (born in 2009).

AB migrated from Europe with the father of the children in 2007 but they had divorced in 2015 at the time she moved to the South Coast.

The offender moved into AB’s home with her children soon after their relationship commenced in 2015. He then became the stepfather of CD, EF and GH.

The offender moved with AB and her children to another address on the South Coast in February 2018.

The relationship between the offender and AB ended in May 2021.

In July 2021, a Helpline report…

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 Childs

Details

AGLC: R v Childs [2022] NSWDC 659
Case: [2022] NSWDC 659
Decision Date: 16 December 2022

CaseChat Overview and Summary

The appellant, Childs, was convicted of child sexual offences and brought the case to the Supreme Court of appeal. Childs, who had pleaded guilty to charges of sexual penetration of a child under the age of 16 and indecent dealing with a child, challenged the sentencing decision of the trial judge. The court was required to determine whether the trial judge had adequately considered the appellant's background of disadvantage and the diminishment of his moral culpability when passing sentence.

The court considered the trial judge's approach to sentencing, which involved weighing the gravity of the offences against the appellant's background and mitigating factors. The appeal court examined whether the trial judge had correctly applied the principles of sentencing for child sexual offences and whether the sentence imposed was manifestly excessive or inadequate. The appeal court highlighted the importance of taking into account the appellant's background of disadvantage and the diminishment of his moral culpability in the sentencing process.

The appeal court found that the trial judge had not adequately considered the appellant's background of disadvantage and the diminishment of his moral culpability. The court held that the sentence imposed was manifestly excessive, taking into account these factors. The appeal court allowed the appeal, quashed the original sentence, and remitted the matter to the trial judge for resentencing. The court emphasised the need for the trial judge to properly consider the appellant's background and mitigating factors when passing sentence. In light of the appeal court's decision, the trial judge was required to resentence the appellant, taking into account the appropriate considerations and principles of sentencing for child sexual offences.

Orders

Orders of the court

See [135] – [138]

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 Childs [2022] NSWDC 659
Hearing dates:	30 November 2022 01 December 2022 13 December 2022
Date of orders:	16 December 2022
Decision date:	16 December 2022
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	See [135] – [138]
Catchwords:	SENTENCING – plea of guilty – child sexual offences - background of disadvantage – diminishment of moral culpability
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v the Queen (2013) 249 CLR 571 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120 Perkins v R [2018] NSWCCA 62 R v Lau [2022] NSWCCA 131 R v Millwood [2012] NSWCCA 2
Category:	Sentence
Parties:	Rex (Crown) Gary John Childs (Offender)
Representation:	Counsel: A Coulton (Crown) D Wong (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Offender)
File Number(s):	2020/0049122
Publication restriction:	Non-publication order in respect of the victims or any information that may tend to identify them.