R v DER

Case [2018] NSWDC 98 6 April 2018

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District Court

New South Wales

Medium Neutral Citation: R v DER [2018] NSWDC 98
Hearing dates: 19 February 2018
Date of orders: 06 April 2018
Decision date: 06 April 2018
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
1) The Offender is convicted on each Count.

2) Pursuant to s 53A, the Offender is sentenced to serve an aggregate term of imprisonment of four years to date from today and to expire on 5 April 2022. I find special circumstances for reasons previously given and vary the statutory ratio in s 44 of the 1999 Act.

3) The Offender is to serve a non-parole period of 2 years from 6 April 2018 to 5 April 2020 and an additional term of two years to commence on 6 April 2020 and to expire on 5 April 2022, during which he shall be eligible to be released on parole.
4) The Offender’s earliest release date in 5 April 2020.
Catchwords:
CRIMINAL LAW – historical offences – indecent assault against female under the age of 16 – acts of indecency against female under the age of 16
SENTENCING – victims vulnerable by reason of age – position of trust – opportunistic – no threats of violence – no aggravating factors made out – delay in prosecution not a factor of mitigation – plea of Guilty – no prior criminal history – limited remorse – limited insight to offending – low likelihood of reoffending – good prospects of rehabilitation – special circumstances established
Legislation Cited: Criminal Procedure Act 1986 ss 166, 168
Crimes (Sentencing Procedure) Act 1999 ss 3, 5, 9, 12, 21A, 30, 44, 53A
Crimes Act 1900 ss 61E, 61M, 76, 76A
Cases Cited: R v Pearson [2005] NSWCCA
Karl Suleman v R [2009] NSWCCA 70
Peiris v R [2014] NSWCCA 58
Alesbhi v R; Esbhi v R [2018] NSWCCA 30
R v PGM [2008] NSWCCA 44
R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
R v Bednarz [2000] NSWCCA 553
Elsobky v R [2006] NSWCCA 168
Dipangkear v R [2010] NSWCCA 156
Mottram v R [1989] NSWCCA 210
AJB v R [2007] NSWCCA 51
PWB v R [2011] NSWCCA 84
Baines v R [2016] NSWCCA 132
R v Hall [2017] NSWCCA 313
R v Moon [2000] NSWCCA 534
MC v R [2017] NSWCCA 316
Category: Sentence
Parties: Regina (Crown)
DER (Offender)
Representation:
Counsel:
Mr S Burton (Solicitor) (Crown)
Mr G Jauncey (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
John Fisicaro & Co (Offender)

File Number(s): 2016/389834
Publication restriction: (1) Non-publication order with respect to the name of any of the complainants or anything tending to identify them; and (2) Non-publication order with respect to the name of the Offender’s wife or any of the children or anything which may identify her or them.

Judgment

On 19 February 2018, following a plea of Guilty, I heard sentencing submissions in relation to the Offender, in respect of 8 offences, the details of which can be described as follows:-

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 DER

Details

AGLC: R v DER [2018] NSWDC 98
Case: [2018] NSWDC 98
Decision Date: 06 April 2018

CaseChat Overview and Summary

In the matter of R v DER, the defendant was convicted on multiple counts of indecent assault against a female under the age of 16, as well as acts of indecency against the same female under the age of 16. The case was heard in the Supreme Court of Victoria. The defendant pleaded guilty to the charges, and the court had to decide on the appropriate sentence.

The court had to consider the nature of the offences, the vulnerability of the victim due to her age, and the defendant's position of trust. The offences were opportunistic, and there were no threats of violence or other aggravating factors. The delay in prosecution did not constitute a mitigating factor. The defendant had no prior criminal history, but there was limited remorse and insight into the offending. The court also considered the likelihood of reoffending and the defendant's prospects of rehabilitation.

After considering all the factors, the court sentenced the defendant to an aggregate term of imprisonment of four years, with a non-parole period of two years. The court found special circumstances, which allowed for a variation of the statutory ratio in the Sentencing Act 1991. The defendant's earliest release date is 5 April 2020, when he will be eligible for parole. The court's decision was based on the seriousness of the offences, the vulnerability of the victim, and the defendant's limited remorse and insight into the offending.

Orders

Orders of the court

1) The Offender is convicted on each Count.

2) Pursuant to s 53A, the Offender is sentenced to serve an aggregate term of imprisonment of four years to date from today and to expire on 5 April 2022. I find special circumstances for reasons previously given and vary the statutory ratio in s 44 of the 1999 Act.

3) The Offender is to serve a non-parole period of 2 years from 6 April 2018 to 5 April 2020 and an additional term of two years to commence on 6 April 2020 and to expire on 5 April 2022, during which he shall be eligible to be released on parole.

4) The Offender’s earliest release date in 5 April 2020.

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 DER [2018] NSWDC 98

Cases Citing This Decision

No citing cases yet.

Cases Cited

Alesbhi v R; Esbhi v R [2018] NSWCCA 30
Citation 1 (Para 57)

…other children whose ages are not identified saw or perceived what had occurred that the offences had taken place. [14] 14. Alesbhi v R; Esbhi v R [2018] NSWCCA 30 at [46]-[57]…
R v Hall [2017] NSWCCA 313
Citation 2

…ttram v R [1989] NSWCCA 210 AJB v R [2007] NSWCCA 51 PWB v R [2011] NSWCCA 84 Baines v R [2016] NSWCCA 132 R v Hall [2017] NSWCCA 313 R v Moon [2000] NSWCCA 534 MC v R [2017] NSWCCA 316 Category: Sentence Parties: Regina (Crown) DER (Offender) Representation: Counsel: Mr S Burton (Solicitor) (Crown) Mr G Jauncey (Of…
MC v R [2017] NSWCCA 316
Citation 3 (Para 125)

…Beyond that I have regard to the sentencing practices at the time of the offending which provided for a greater level of concurrency. [40] 40. MC v R [2017] NSWCCA 316 at [44]…
Baines v R [2016] NSWCCA 132
Citation 4 (Para 115)

…e offences before the Court, I take into account the surrounding circumstances of the offending consistent with what was said in Baines v R. [34] 34. [2016] NSWCCA 132 at [5]-[7] Basten JA (with whom Rothman J and Fargan J agreed)…
Henderson v R [2016] NSWCCA 8
Citation 5 (Para 86)

…a few subsequent cases. There are references in the judgments of Adams J in Versi v R [2013] NSWCCA 206 at [185] and of R S Hulme AJ in Henderson v R [2016] NSWCCA 8;256 A Crim R 519 at [86] but they were each in dissent. The others were AJB v R [2007] NSWCCA 51; 169 A Crim R 32, GRD v R [2009] NSWCCA 149, PWB v R…
RL v R [2015] NSWCCA 106
Citation 6

…dissent. The others were AJB v R [2007] NSWCCA 51; 169 A Crim R 32, GRD v R [2009] NSWCCA 149, PWB v R [2011] NSWCCA 84; 216 A Crim R 305 and RL v R [2015] NSWCCA 106. [72] Each of these cases had some unusual features over and above a lack of further offending in the period between the offences and the sentencing…
Peiris v R [2014] NSWCCA 58
Citation 7 (Para 29)

…The Crown submission was subsequently cast more narrowly in light of the decision in in Peiris v R . [7] 7. [2014] NSWCCA 58 at [45]-[54]…
Versi v R [2013] NSWCCA 206
Citation 8 (Para 185)

…s this Court is aware. The comment has been referred to in only a few subsequent cases. There are references in the judgments of Adams J in Versi v R [2013] NSWCCA 206 at [185] and of R S Hulme AJ in Henderson v R [2016] NSWCCA 8;256 A Crim R 519 at [86] but they were each in dissent. The others were AJB v R [2007]…
R v Pogson [2012] NSWCCA 225
Citation 9

…2014] NSWCCA 58 Alesbhi v R; Esbhi v R [2018] NSWCCA 30 R v PGM [2008] NSWCCA 44 R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 R v Bednarz [2000] NSWCCA 553 Elsobky v R [2006] NSWCCA 168 Dipangkear v R [2010] NSWCCA 156 Mottram v R [1989] NSWCCA 210 AJB v R [2007] NSWCCA 51 PWB v R [2011] NSWCCA 84 Baines v R…
PWB v R [2011] NSWCCA 84
Citation 10 (Para 99)

…e time suggests that it should be a third to a half. [32] 32. Mottram v R [1989] NSWCCA 210 at [41]-[42]; AJB v R [2007] NSWCCA 51 at [39]; PWB v R [2011] NSWCCA 84 at [64].…
Dipangkear v R [2010] NSWCCA 156
Citation 11 (Para 96)

…gth of the non-parole period. [30] 30. see R v Bednarz [2000] NSWCCA 553 at [51] - [52]; Elsobky v R [2006] NSWCCA 168 at [17] - [21]; Dipangkear v R [2010] NSWCCA 156 at [29] and [40].…
GRD v R [2009] NSWCCA 149
Citation 12

…derson v R [2016] NSWCCA 8;256 A Crim R 519 at [86] but they were each in dissent. The others were AJB v R [2007] NSWCCA 51; 169 A Crim R 32, GRD v R [2009] NSWCCA 149, PWB v R [2011] NSWCCA 84; 216 A Crim R 305 and RL v R [2015] NSWCCA 106. [72] Each of these cases had some unusual features over and above a lack of…
Suleman v R [2009] NSWCCA 70
Citation 13

…, 12, 21A, 30, 44, 53A Crimes Act 1900 ss 61E, 61M, 76, 76A Cases Cited: R v Pearson [2005] NSWCCA Karl Suleman v R [2009] NSWCCA 70 Peiris v R [2014] NSWCCA 58 Alesbhi v R; Esbhi v R [2018] NSWCCA 30 R v PGM [2008] NSWCCA 44 R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 R v Bednarz [2000] NSWCCA 553 Elsobky…
Kerr v Regina [2008] NSWCCA 44
Citation 14 (Para 79)

…urred. I accept the Offender’s prior good character is to be afforded relatively less weight over the time the offending occurred. [21] 21. R v PGM [2008] NSWCCA 44 at [43]-[44]…
AJB v R [2007] NSWCCA 51
Citation 15 (Para 99)

…atutory ratio, but the cases at the time suggests that it should be a third to a half. [32] 32. Mottram v R [1989] NSWCCA 210 at [41]-[42]; AJB v R [2007] NSWCCA 51 at [39]; PWB v R [2011] NSWCCA 84 at [64].…
Elsobky v R [2006] NSWCCA 168
Citation 16 (Para 96)

…n appropriate sentence and in relation to the length of the non-parole period. [30] 30. see R v Bednarz [2000] NSWCCA 553 at [51] - [52]; Elsobky v R [2006] NSWCCA 168 at [17] - [21]; Dipangkear v R [2010] NSWCCA 156 at [29] and [40].…
R v MJR [2002] NSWCCA 129
Citation 17

…r in the context of Howie J dealing with the general question of sentencing for historical offences. This passage was approved in R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 at 384 [107]; [2002] NSWCCA 129 (Sully J, Spigelman CJ, Grove J and Newman AJ agreeing). This case involved a five-judge bench of this Court…
R v MJK [2001] NSWCCA 325
Citation 18

…Howie J dealing with the general question of sentencing for historical offences. This passage was approved in R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 at 384 [107]; [2002] NSWCCA 129 (Sully J, Spigelman CJ, Grove J and Newman AJ agreeing). This case involved a five-judge bench of this Court convened to consider…
R v Moon [2000] NSWCCA 534
Citation 19 (Para 121)

…ng so, I acknowledge that many of the offences are historical and those offences and applicable maximum penalties are a feature of earlier times. 39. [2000] NSWCCA 534 at [70] (Fitzgerald JA concurring)…
R v Bednarz [2000] NSWCCA 553
Citation 20 (Para 96)

…t of the general factual matrix in selecting an appropriate sentence and in relation to the length of the non-parole period. [30] 30. see R v Bednarz [2000] NSWCCA 553 at [51] - [52]; Elsobky v R [2006] NSWCCA 168 at [17] - [21]; Dipangkear v R [2010] NSWCCA 156 at [29] and [40].…
Veen v The Queen [1979] HCA 7
Citation 21

…offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen(1979) [1979] HCA 7; 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as vi…
Mottram v R [1989] NSWCCA 210
Citation 22 (Para 99)

…9. Neither of these Acts prescribed a statutory ratio, but the cases at the time suggests that it should be a third to a half. [32] 32. Mottram v R [1989] NSWCCA 210 at [41]-[42]; AJB v R [2007] NSWCCA 51 at [39]; PWB v R [2011] NSWCCA 84 at [64].…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 12, 21A, 3, 30, 44, 5, 53A, 9
9 mentions (from Para 20)
Crimes Act 1900 (ACT) 61E, 61M, 76, 76A
5 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW) 166, 168
3 mentions (from Para 6)
Probation and Parole Act 1983 (NSW)
1 mention (from Para 99)

Medium Neutral Citation:	R v DER [2018] NSWDC 98
Hearing dates:	19 February 2018
Date of orders:	06 April 2018
Decision date:	06 April 2018
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	1) The Offender is convicted on each Count. 2) Pursuant to s 53A, the Offender is sentenced to serve an aggregate term of imprisonment of four years to date from today and to expire on 5 April 2022. I find special circumstances for reasons previously given and vary the statutory ratio in s 44 of the 1999 Act. 3) The Offender is to serve a non-parole period of 2 years from 6 April 2018 to 5 April 2020 and an additional term of two years to commence on 6 April 2020 and to expire on 5 April 2022, during which he shall be eligible to be released on parole. 4) The Offender’s earliest release date in 5 April 2020.
Catchwords:	CRIMINAL LAW – historical offences – indecent assault against female under the age of 16 – acts of indecency against female under the age of 16 SENTENCING – victims vulnerable by reason of age – position of trust – opportunistic – no threats of violence – no aggravating factors made out – delay in prosecution not a factor of mitigation – plea of Guilty – no prior criminal history – limited remorse – limited insight to offending – low likelihood of reoffending – good prospects of rehabilitation – special circumstances established
Legislation Cited:	Criminal Procedure Act 1986 ss 166, 168 Crimes (Sentencing Procedure) Act 1999 ss 3, 5, 9, 12, 21A, 30, 44, 53A Crimes Act 1900 ss 61E, 61M, 76, 76A
Cases Cited:	R v Pearson [2005] NSWCCA Karl Suleman v R [2009] NSWCCA 70 Peiris v R [2014] NSWCCA 58 Alesbhi v R; Esbhi v R [2018] NSWCCA 30 R v PGM [2008] NSWCCA 44 R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 R v Bednarz [2000] NSWCCA 553 Elsobky v R [2006] NSWCCA 168 Dipangkear v R [2010] NSWCCA 156 Mottram v R [1989] NSWCCA 210 AJB v R [2007] NSWCCA 51 PWB v R [2011] NSWCCA 84 Baines v R [2016] NSWCCA 132 R v Hall [2017] NSWCCA 313 R v Moon [2000] NSWCCA 534 MC v R [2017] NSWCCA 316
Category:	Sentence
Parties:	Regina (Crown) DER (Offender)
Representation:	Counsel: Mr S Burton (Solicitor) (Crown) Mr G Jauncey (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) John Fisicaro & Co (Offender)
File Number(s):	2016/389834
Publication restriction:	(1) Non-publication order with respect to the name of any of the complainants or anything tending to identify them; and (2) Non-publication order with respect to the name of the Offender’s wife or any of the children or anything which may identify her or them.