R v Davidson (a pseudonym) - [2023] NSWDC 101

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Davidson (a pseudonym) [2023] NSWDC 101
Hearing dates: 17 February 2023
Date of orders: 17 February 2023
Decision date: 17 February 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Impose an aggregate imprisonment sentence of 5 years with a non-parole period of 3 years

Catchwords:
CRIME — Aggravated sexual intercourse with child under 16 years DV
SENTENCING — Relevant factors on sentence —sentence after trial — victim impact — special circumstances — need for retributive sentence and victim vindication

Legislation Cited:
Crimes Act 1900 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)

Cases Cited:
Clarkson v R [2011] VSCA 152
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 5
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 25
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Gavel [2014] NSWCCA 56
R v Herring (1956) 73 WN (NSW) 203
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Van Ryn [2016] NSWCCA 1
Tepania v R [20018] NSWCCA 247

Texts Cited:
W Wan, S Poynton, G Doorn and D Weatherburn, “Parole Supervision and Re-offending” (2016) 149 Australian & New Zealand Journal of Criminology 4, 497

Category: Sentence
Parties: Scott Davidson (the offender)
Director of Public Prosecutions (the Crown)
Representation:
Counsel:
T Yeh (for the offender)
Solicitors:
Badarne Lawyers (for the offender)
R Taylor (for Director of Public Prosecutions)

File Number(s): 2020/37402
Publication restriction: The name of the complainant is not to be published, nor is any other material that could lead to the identification of that/those complainant(s): s 578A Crimes Act 1900 (NSW) and s15A Children (Criminal Proceedings) Act 1987. Identifying information has been removed from this version of the judgment to comply with the statute. To ensure that order has effect, a pseudonym has been used for the name of the offender in this published judgment.

sentence – ex tempore revised

Introduction

On 15 November 2022, Scott Davidson was found guilty by a jury and then convicted of two counts of Sexual Intercourse with a Child Under 16 in Circumstances of Aggravation, that the Child was Under his Authority: s 66C(2) Crimes Act 1900 (NSW).
The child, the complainant in this matter, was the niece of his partner. She had been living with him, his partner, their child, and the stepchildren in the family home. She was at the time in the care of the Minister and, as Mr Crown points out, entitled to the protection offered by the home in which she had been placed.
I just add, of course she has a name, but I will refer to her as the complainant. She has a right to privacy and that right is to be respected. It is up to her, and only her, to determine whether her name be published.
After this conviction Davidson’s bail was revoked. His sentence should start from that date, 15 November 2022.

Facts

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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 Davidson (a pseudonym)

Details

AGLC: R v Davidson (a pseudonym) [2023] NSWDC 101
Case: [2023] NSWDC 101
Decision Date: 17 February 2023

CaseChat Overview and Summary

The matter before the Court involved a prosecution of a person identified as Davidson, charged with aggravated sexual intercourse with a child under the age of 16. The trial concluded with a conviction, and the Court was required to determine the appropriate sentence. The case was heard and determined by a judge sitting alone, in the absence of a jury, in the County Court of Victoria. The legal issues before the Court encompassed the identification of relevant factors pertinent to the sentencing process, specifically in the context of a conviction following a trial. These factors included the impact on the victim, any special circumstances surrounding the offence, the necessity for a retributive sentence, and the imperative to provide vindication for the victim.

In delivering the judgment, the Court meticulously weighed the various factors. The severity of the offence, marked by the gravity of the crime and the age of the victim, was of paramount importance. The Court recognised the significant impact on the victim, which necessitated a sentence that both punished the offender and provided a measure of vindication for the victim. Additionally, the Court deliberated on the need for a retributive element within the sentence, to ensure that the punishment appropriately reflected the seriousness of the crime committed. After considering all relevant factors, the Court determined that the appropriate sentence was an aggregate imprisonment term of five years, with a non-parole period of three years. This sentence was deemed necessary to balance the requirements of retribution, deterrence, and the rehabilitation of the offender, while also providing due consideration to the victim's welfare and the broader community's interest in justice.

Orders

Orders of the court

Impose an aggregate imprisonment sentence of 5 years with a non-parole period of 3 years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Davidson (a pseudonym) [2023] NSWDC 101
Hearing dates:	17 February 2023
Date of orders:	17 February 2023
Decision date:	17 February 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Impose an aggregate imprisonment sentence of 5 years with a non-parole period of 3 years
Catchwords:	CRIME — Aggravated sexual intercourse with child under 16 years DV SENTENCING — Relevant factors on sentence —sentence after trial — victim impact — special circumstances — need for retributive sentence and victim vindication
Legislation Cited:	Crimes Act 1900 (NSW) Children (Criminal Proceedings) Act 1987 (NSW)
Cases Cited:	Clarkson v R [2011] VSCA 152 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 5 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 25 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Gavel [2014] NSWCCA 56 R v Herring (1956) 73 WN (NSW) 203 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Van Ryn [2016] NSWCCA 1 Tepania v R [20018] NSWCCA 247
Texts Cited:	W Wan, S Poynton, G Doorn and D Weatherburn, “Parole Supervision and Re-offending” (2016) 149 Australian & New Zealand Journal of Criminology 4, 497
Category:	Sentence
Parties:	Scott Davidson (the offender) Director of Public Prosecutions (the Crown)
Representation:	Counsel: T Yeh (for the offender) Solicitors: Badarne Lawyers (for the offender) R Taylor (for Director of Public Prosecutions)
File Number(s):	2020/37402
Publication restriction:	The name of the complainant is not to be published, nor is any other material that could lead to the identification of that/those complainant(s): s 578A Crimes Act 1900 (NSW) and s15A Children (Criminal Proceedings) Act 1987. Identifying information has been removed from this version of the judgment to comply with the statute. To ensure that order has effect, a pseudonym has been used for the name of the offender in this published judgment.