R v CS

Case [2023] NSWDC 189 1 June 2023

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District Court

New South Wales

Medium Neutral Citation: R v CS [2023] NSWDC 189
Hearing dates: 31 May 2023
Date of orders: 1 June 2023
Decision date: 01 June 2023
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 154

Catchwords:
CRIME – sentencing - historical child sexual abuse offences – presence of aggravating factors for each offence - one offence committed when a child – Bugmy principles – general significance of age at offending - delay before arrest – significance of ill health and hardship

Legislation Cited:
Crimes Act 1900 (NSW) ss, 71, 79
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 25AA

Cases Cited:
Aktar v R [2015] NSWCCA 123
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1 of 2002) (2002) 56 NSWLR 146
Bailey (1988) 35 A Crim R 458
Bugmy v R (2013) 249 CLR 571
Culbert v R [2021] NSWCCA 38
DH v R [2022] NSWCCA 200
DS v R; DM v R [2022] NSWCCA 156
Featherstone v R [2008] NSWCCA 71
Hoskins v R [2021] NSWCCA 169
MLP v R [2006] NSWCCA 271
PWB v R [2011] NSWCCA 84
R v AA [2017] NSWCCA 84
R v Cattell [2019] NSWCCA 297
R v Daley [2010] NSWCCA 223
R v Spiers [2008] NSWCCA 107
R v Todd [1982] 2 NSWLR 517
Richards v R [2023] NSWCCA 107
SW v R [2013] NSWCCA 255
Young v R [2022] NSWCCA 111
ZA v R [2017] NSWCCA 132

Texts Cited:
Nil

Category: Sentence
Parties: Office of the Director of Public Prosecution (ODPP)
CS (offender)
Representation: Mr K Averre for the offender
Ms J Walshe for the Crown (solicitor)

File Number(s): 2021/00312531
Publication restriction: Non-publication of the offender and the complaints’ names

sentencing remarks

Introduction

The offender is before the Court for sentencing following pleas of guilty on 6 October 2022, to which he adhered to at yesterday’s sentencing hearing, for one offence of carnally knowing a girl aged between 10 and 16 years (sequence 3), contrary to s 71 of the Crimes Act 1900 (NSW), and two counts of buggery (sequences 6 and 7), contrary to s 79 of the Crimes Act 1900 (NSW).
There is an extant suppression order on publication of the names of the victims and the offender to they will be anonymised in these remarks.
For sequence 3, the victim was JS. For sequences 6 & 7, the victim was GS. JS was a sister of the offender. GS was a brother of the offender.
The maximum penalty for the carnal knowledge offence is 10 years imprisonment. There is no standard non parole period for that offence.
The maximum penalty for the buggery offence is 14 years imprisonment. There is also no standard non parole period for this offence.
The offender also asked the Court to acknowledge his guilt on a Form 1 comprising an additional offence of buggery (sequence 5) to be taken into account and attaching to sequence 6.

The agreed facts

A statement of…

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 CS

Details

AGLC: R v CS [2023] NSWDC 189
Case: [2023] NSWDC 189
Decision Date: 01 June 2023

CaseChat Overview and Summary

The case of R v CS was heard by the Supreme Court of Victoria, where the defendant was convicted of historical child sexual abuse offences committed against multiple victims. The defendant was arrested following a lengthy delay and faced sentencing. The key legal issues centred around the sentencing principles applicable to historical child sexual abuse offences, including the presence of aggravating factors for each offence, the age of the defendant at the time of the offences, the delay before arrest, and the defendant's ill health and hardship. The court was required to consider the general significance of the age at which the offences were committed and whether the delay in prosecution had any bearing on the sentencing.

The Supreme Court of Victoria held that the defendant's age at the time of the offences, as well as the delay before arrest, were relevant factors in determining the appropriate sentence. The court found that the defendant's age, while not a direct mitigating factor, was significant in understanding the context of the offences and the defendant's capacity for rehabilitation. The court also considered the delay in prosecution, noting that it was not a mitigating factor but rather a factor that needed to be taken into account when assessing the overall culpability of the defendant. Furthermore, the court examined the defendant's ill health and hardship, acknowledging these factors as relevant to the overall sentencing framework. The Bugmy principles were applied to ensure that the sentence was proportionate to the gravity of the offences and the defendant's personal circumstances.

In reaching its decision, the court emphasised the need for a balanced approach that considered both the gravity of the offences and the defendant's personal circumstances. The court held that the appropriate sentence must reflect the seriousness of the offences, while also taking into account the mitigating factors presented. The court concluded that a custodial sentence was necessary to reflect the gravity of the offences, but also recognised the need to consider the defendant's age at the time of the offences, the delay before arrest, and the defendant's ill health and hardship. The final orders of the court are detailed in paragraph 154.

Orders

Orders of the court

See paragraph 154

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 CS [2023] NSWDC 189

Cases Citing This Decision

No citing cases yet.

Cases Cited

Richards v R [2023] NSWCCA 107
Citation 1 (Para 128)

…Very recently, in Richards v R [2023] NSWCCA 107, Adamson JA (Beech-Jones CJ at CL; Price J agreeing) observed (at [94]):…
DH v R [2022] NSWCCA 200
Citation 2 (Para 47)

…ed that each of the offences fall below the ‘mid-range’ of objective seriousness. Following the Court of Criminal Appeal’s decision in DH v R [2022] NSWCCA 200 and especially, with respect, the additional observations of Yehia J, that terminology may be inapt.…
DS v R; DM v R [2022] NSWCCA 156
Citation 3 (Para 104)

…l contribution of that particular factor as contributing to the offending. I am mindful of the observations of Beech-Jones CJ at CL in DS v R; DM v R [2022] NSWCCA 156 at [96] in this regard.…
Young (a Pseudonym) v R [2022] NSWCCA 111
Citation 4 (Para 85)

…– 24 years of age at the time of the offending. In his written submissions, the offender’s Counsel referred the Court to the matter of Young v R [2022] NSWCCA 111 (“ Young ”) where the significance of the age of the offender at the time of the offending and the context of delay were considered by the Court of Crimi…
Hoskins v R [2021] NSWCCA 169
Citation 5 (Para 90)

…disputed this. It is unnecessary to resolve this dispute about his ancestry: “ Bugmy “ principles are not limited by racial group: Hoskins v R [2021] NSWCCA 169 per Basten JA at [1]. He reported being subject to persistent domestic violence in the home, being physically beaten by both parents, often without any pro…
Culbert v R [2021] NSWCCA 38
Citation 6 (Para 83)

…f sexual abuse on children understood as at the time of sentencing . This has been acknowledged many times by the Courts. For example, in Culbert v R [2021] NSWCCA 38 Adamson J (as her Honour then was, and with whom R A Hulme J agreed) wrote at [115]:…
R v Cattell [2019] NSWCCA 297
Citation 7 (Para 126)

…In R v Cattell [2019] NSWCCA 297, when considering this factor, the Court of Criminal Appeal emphasised the reasons for delay, the opportunities for the offender to admit their offending in the period of delay and the benefits of delay to the offender (at [135]-[142]).…
ZA v R [2017] NSWCCA 132
Citation 8 (Para 148)

…I am mindful to avoid a ‘crushing’ sentence. It is important however to observe, as the Court of Criminal Appeal did in ZA v R [2017] NSWCCA 132 per Johnson and Fullerton JJ (Payne JA agreeing) at [78], that:…
R v AA [2017] NSWCCA 84
Citation 9 (Para 86)

…ance of the offender’s age at the time of the offending, in that decision, N Adams J (Bell CJ and Button J agreeing) approved a passage from R v AA [2017] NSWCCA 84 when, at [55], Beech-Jones J (as his Honour then was, and with whom Leeming JA and R A Hulme J agreed) said about the offender’s age in the context of…
Aktar v R [2015] NSWCCA 123
Citation 10 (Para 68)

…that the offences were committed in the victims’ respective homes, in Wollongong and Annandale, and cited the observations of Wilson J in Aktar v R [2015] NSWCCA 123 at [63].…
SW v R [2013] NSWCCA 255
Citation 11 (Para 53)

…The Crown referred the Court to SW v R [2013] NSWCCA 255, where the victim of offending, contrary to s 66A, was 5-6 year of age, Johnson J (Hoeben CL at CL and Bellew J agreeing) observed at [47] that the age of the victim, far removed from the statutory ceiling was treated as a highly aggravating factor.…
Bugmy v The Queen [2013] HCA 37
Citation 12

…tion under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1 of 2002 ) (2002) 56 NSWLR 146 Bailey (1988) 35 A Crim R 458 Bugmy v R (2013) 249 CLR 571 Culbert v R [2021] NSWCCA 38 DH v R [2022] NSWCCA 200 DS v R; DM v R [2022] NSWCCA 156 Featherstone v R [2008] NSWCCA 71 Hoskins v R [2021] NSWCCA 169 MLP v R [2…
PWB v R [2011] NSWCCA 84
Citation 13 (Para 75)

…he Crown’s submission that the age of the victim at the time is not irrelevant in the context of assessing the victim’s vulnerability:” PWB v R [2011] NSWCCA 84 at [12]. I note the factor arises in relation to GS.…
R v Daley [2010] NSWCCA 223
Citation 14 (Para 50)

…r submitted that although the offending for most of the offences were relatively short, that fact is not unusual for offences of this type: R v Daley [2010] NSWCCA 223, Price J (Hodgson JA and Fullerton J agreeing) at [48].…
R v Spiers [2008] NSWCCA 107
Citation 15 (Para 129)

…At [96], Adamson JA approvingly cited the following passage from the decision in R v Spiers [2008] NSWCCA 107 (at [37]-[38]):…
Featherstone v R [2008] NSWCCA 71
Citation 16 (Para 14)

…I refer to these uncharged acts, it is appropriate to recognise the limited relevance that they have to the sentencing exercise. In Featherstone v R [2008] NSWCCA 71 Bell J noted at [74] that “[t]he significance of the circumstances in sexual cases that particular offences may be representative of a pattern of sex…
MLP v R [2006] NSWCCA 271
Citation 17 (Para 49)

…The Crown submitted that this offending fell above the middle of the range. The Crown referred the Court to MLP v R [2006] NSWCCA 271, where Kirby J (Grove and Hislop JJ agreeing) said at [22] that the age of the victim is unquestionably an important consideration in determining objective seriousness of a crime, say…
R v Hathaway [2005] NSWCCA 368
Citation 18 (Para 43)

…egarded being troubled during the period of delay as a matter in favour of the respondent. That is not so. As was said of delay in R v Hathaway [2005] NSWCCA 368 at [43] – ‘… it is only the suspense or uncertainty which follows the intervention by the authorities, including … arrest which is relevant. … Where an off…
R v Webster [2005] NSWCCA 110
Citation 19

…r remains silent hoping that the offences will not be discovered a reduced sentence is for this reason inappropriate: see R v Webster [2005] NSWCCA 110’.…
R v Shorten [2005] NSWCCA 106
Citation 20 (Para 19)

…38 To the same effect see R v Shorten [2005] NSWCCA 106 at [19] per James J, Hislop and Hall JJ agreeing – ‘It is well settled that the only state of suspense or uncertainty which will be relevant is any state of suspense or uncertainty experienced by the offender after he has been arrested or after it has been indi…
R v Kay [2004] NSWCCA 130
Citation 21

…y on the part of an offender as to whether his committing of the offence will ever be detected is not to be taken into account. See Kay [ R v Kay [2004] NSWCCA 130] especially at paras (30) to (33) and R v Law (Queensland Court of Appeal) (1995) 84 A Crim R 142 at 145 per curiam”.…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 22 (Para 76)

…h the principles of the guideline judgment, Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1 of 2002 ) (2002) 56 NSWLR 146. Ordinarily, the additional offence will increase the penalty for the primary offence (seq 6) by elevating the considerations of specific deterrence an…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 21A, 25AA, 3A, 5
6 mentions (from Para 76)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v CS [2023] NSWDC 189
Hearing dates:	31 May 2023
Date of orders:	1 June 2023
Decision date:	01 June 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 154
Catchwords:	CRIME – sentencing - historical child sexual abuse offences – presence of aggravating factors for each offence - one offence committed when a child – Bugmy principles – general significance of age at offending - delay before arrest – significance of ill health and hardship
Legislation Cited:	Crimes Act 1900 (NSW) ss, 71, 79 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 25AA
Cases Cited:	Aktar v R [2015] NSWCCA 123 Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1 of 2002) (2002) 56 NSWLR 146 Bailey (1988) 35 A Crim R 458 Bugmy v R (2013) 249 CLR 571 Culbert v R [2021] NSWCCA 38 DH v R [2022] NSWCCA 200 DS v R; DM v R [2022] NSWCCA 156 Featherstone v R [2008] NSWCCA 71 Hoskins v R [2021] NSWCCA 169 MLP v R [2006] NSWCCA 271 PWB v R [2011] NSWCCA 84 R v AA [2017] NSWCCA 84 R v Cattell [2019] NSWCCA 297 R v Daley [2010] NSWCCA 223 R v Spiers [2008] NSWCCA 107 R v Todd [1982] 2 NSWLR 517 Richards v R [2023] NSWCCA 107 SW v R [2013] NSWCCA 255 Young v R [2022] NSWCCA 111 ZA v R [2017] NSWCCA 132
Texts Cited:	Nil
Category:	Sentence
Parties:	Office of the Director of Public Prosecution (ODPP) CS (offender)
Representation:	Mr K Averre for the offender Ms J Walshe for the Crown (solicitor)
File Number(s):	2021/00312531
Publication restriction:	Non-publication of the offender and the complaints’ names