R v Dixon

[2022] NSWDC 414

District Court

New South Wales

Medium Neutral Citation:

R v Dixon [2022] NSWDC 414

Hearing dates:

15 September 2022

Date of orders:

15 September 2022

Decision date:

15 September 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 69 – 71

Catchwords:

CRIME – sentencing – sexual assault

Legislation Cited:

Crimes Act 1900 (NSW) s 61I

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 67, 89

Cases Cited:

BP v The Queen (2010) 201 A Crim R 379

Cheungv The Queen (2001) 209 CLR 1

DPP v Burton [2020] NSWCCA 54

Fisher v R [2021] NSWCCA 91

Flick v R [2012] NSWCCA 170

Greenwood v R [2008] NSWCCA 64

Kelly v R [2022] NSWCCA 189

Kiss v R [2021] NSWCCA 158

RvDaley [2010] NSWCCA 223

RvHibberd (2009) 194 A Crim R 1

R vOlbrich (1999) 199 CLR 270

Savvasv The Queen (1995) 183 CLR 1

Texts Cited:

Nil

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions (ODPP)
Mr T Dixon (offender)

Representation:

Counsel:
Mr B Queenan for the ODPP
Mr R Pettit for the offender

Solicitors:
ODPP
Criminal Defence Lawyers Australia for the offender

File Number(s):

2020/00184297

Publication restriction:

Non-publication of victim’s name in accordance with s 578A Crimes Act 1900

EX TEMPORE SENTENCING REMARKS

1. The offender is before the Court for sentencing after a jury found, in a trial which I presided over, that he was guilty of the offence of sexual assault against [redacted] at Redhead on 28 July 2013, contrary to s 61I of the Crimes Act 1900 (NSW) (the Act). The jury rendered its verdict on 21 June 2022.

2. At the time of the offence, it carried a maximum penalty of 14 years imprisonment, with a standard non-parole period of 7 years’ imprisonment. I take both of those circumstances into account in determining the appropriate penalty.

3. In relation to the approach of a sentencing judge to fact-finding after a jury has rendered a guilty verdict, in Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict”. In Cheung v The Queen (2001) 209 CLR 1 the High Court (in the joint judgment) summarised the law at [11]-[14]. I have had regard to those principles in finding the following facts. In particular, the jury’s verdict necessarily accepted an acceptance of the complainant’s credibility and reliability, certainly when it came to her account of how and in what circumstances, the offending occurred.

4. More generally, to the extent that the Crown relies upon disputed facts adverse to the offender, it must prove them beyond reasonable doubt. Conversely, where the offender relies upon disputed facts favourable to him, he must prove them on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.

5. Relevant, in…