1. In respect of count 2 the offender is sentenced to a fixed term of 15 months imprisonment to date from 17 October 2019 and which will expire on 16 January 2021; and 2. In respect of the count 1 the offender is sentenced to a non-parole period of 3 years and 3 months to commence on 17 October 2019 and which will expire on 16 January 2023. There after there will be a period on parole of 1 year 6 months to commence on 17 January 2023 and which will expire on 16 July 2024.
Catchwords:
CRIME – sentence – sexual intercourse without consent – indecent assault – offending occurred in victim’s home – intellectual impairment of offender – Bugmy principles – accumulation and concurrency
Director of Public Prosecutions (for the Crown) DE (Offender)
Representation:
Counsel: Ms T Hennesy (for the offender)
Solicitors: Ms R O’Meagher (for the DPP)
File Number(s):
2017/214827
Publication restriction:
THE RELEVANT LEGISLATION PROVIDES THAT THERE MUST BE NO PUBLICATION OF THE NAME OF THE VICTIM OR ANYTHING THAT MIGHT TEND TO IDENTIFY HER.
REMARKS ON SENTENCE
THE COURT REMINDS ALL CONCERNED THAT THE RELEVANT LEGISLATION PROVIDES THAT THERE MUST BE NO PUBLICATION OF THE NAME OF THE VICTIM OR ANYTHING THAT MIGHT TEND TO IDENTIFY HER.
Following a trial at the Dubbo District Court the offender was found guilty by a jury on 29 October 2019 of two counts, namely:
That (he) on 9 July 2017 in Bourke in the State of New South Wales did have sexual intercourse with AL without the consent of AL knowing that she was not consenting, contrary to s 61I of the Crimes Act, 1900 and further
That (he) on 9 July 2017 at Bourke in the State of New South Wales, did assault AL and that he DE at the time of such assault did commit an act of indecency upon AL.
The matter proceeded to trial and accordingly there can be no discount…
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.
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Details
AGLC
R v De [2020] NSWDC 94
Case
[2020] NSWDC 94
Decision Date
CaseChat Overview and Summary
In this case, the defendant, referred to as De, was convicted of sexual intercourse without consent and indecent assault. The offences were committed in the victim's home, and the offender has an intellectual impairment. The matter was heard in the Supreme Court of Queensland. The primary legal issues that the court had to address were the appropriate sentence to be imposed on the defendant, taking into account the Bugmy principles, and whether the sentences for the two counts should be cumulative or concurrent.
The court considered the Bugmy principles, which outline the need for courts to give appropriate weight to the offender's intellectual impairment when determining a sentence. The court also considered the seriousness of the offences, the offender's culpability, and the need for deterrence and rehabilitation. The court determined that the appropriate sentence for count 2 was a fixed term of 15 months imprisonment, which would expire on 16 January 2021. For count 1, the court imposed a non-parole period of 3 years and 3 months, which would expire on 16 January 2023, followed by a period on parole of 1 year 6 months, which would expire on 16 July 2024. The court decided that the sentences should run concurrently, meaning that the defendant would serve the longest sentence of 3 years and 3 months, followed by the parole period. This approach recognises the Bugmy principles and the need to balance the need for punishment with the offender's intellectual impairment.
The court's final orders were that the defendant would serve a fixed term of 15 months imprisonment for count 2, which would expire on 16 January 2021, and a non-parole period of 3 years and 3 months for count 1, which would expire on 16 January 2023, followed by a period on parole of 1 year 6 months, which would expire on 16 July 2024. The sentences were to run concurrently.
Orders
Orders of the court
1. In respect of count 2 the offender is sentenced to a fixed term of 15 months imprisonment to date from 17 October 2019 and which will expire on 16 January 2021; and
2. In respect of the count 1 the offender is sentenced to a non-parole period of 3 years and 3 months to commence on 17 October 2019 and which will expire on 16 January 2023. There after there will be a period on parole of 1 year 6 months to commence on 17 January 2023 and which will expire on 16 July 2024.