R v DS - [2020] NSWDC 66

District Court

New South Wales

Medium Neutral Citation: R v DS [2020] NSWDC 66
Hearing dates: 13 February 2020
Date of orders: 28 February 2020
Decision date: 28 February 2020
Jurisdiction: Criminal
Before: Letherbarrow SC DCJ
Decision:
The offender is convicted of counts 2 and 4 in the indictment. I impose an aggregate non-parole period of two years and one month commencing on 26 February 2020 and expiring on 25 March 2022 when the offender will be eligible for release to parole. I impose an aggregate head sentence of 3 years and 6 months commencing on 26 February 2020 expiring on 25 August 2023.

Catchwords:
CRIME – Sexual offences – Aggravated indecent assault
SENTENCING – Penalties – Imprisonment – Aggregate sentence
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Bail Act 2013 (NSW)
Cases Cited: Dousha v R [2008] NSWCCA 263
R v Fisher (1989) A Crim R 442
Markarian v R (2006) 28 CLR 357
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
Category: Sentence
Parties: Regina (Crown)
DS (Offender)
Representation:
Counsel:
C Reynolds (Crown)
P Harper (Defence)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Hamilton Janke Lawyers (Defence)

File Number(s): 2018/00106233
Publication restriction: Non-publication order re identity of complainant, child witnesses and name of the offender.

Judgment

Introduction

On Tuesday 19 November last at Newcastle the offender was found guilty by a jury in relation to two counts of aggravated indecent assault, committed against his 12-year-old niece by marriage, contrary to section 61M(2) of the Crimes Act (the Act). The maximum penalty for such an offence is 10 years imprisonment and the legislation provides for a standard non-parole period of 8 years.
The jury could not reach verdicts in relation to two more serious charges of having sexual intercourse with a child of or above 10 years and under the age of 16 years, contrary to section 66C(1) of the Act and said to have been committed against the same complainant. Obviously the offender remains innocent of those two charges.

The Matter’s Procedural History and the Offenders Pre-sentence Custody

Immediately after I discharged the jury, the Crown sought to bring a detention application pursuant to s 50 of the Bail Act. Up until this point the offender had been on conditional bail since 6 April 2018, being the day after his arrest in relation to these matters. As I was not satisfied that reasonable notice of the application had been given by the Crown to the defence (indeed no notice had been given), I stood over such application to 28 November last to be heard by another judge then sitting in Newcastle (I having returned to Sydney). I also continued the offender’s bail with the addition of a reporting condition. Further, I listed the matter for mention on 6 December last to fix a date for the sentence hearing to take place before me and Thursday 13 February last at Parramatta was chosen…

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 DS

Details

AGLC: R v DS [2020] NSWDC 66
Case: [2020] NSWDC 66
Decision Date: 28 February 2020

CaseChat Overview and Summary

The case of R v DS involved the defendant, DS, who was charged with and convicted of counts 2 and 4 of the indictment, which pertained to aggravated indecent assault. The matter was heard and determined in the relevant Australian court, where the central issue was the sentencing of DS for the sexual offences committed. The court was tasked with determining the appropriate penalties, focusing on the severity and nature of the crimes, and deciding on the length and conditions of the imprisonment, including the non-parole period.

The legal issues before the court included the assessment of the gravity of the offences, the need for deterrence and rehabilitation, and the imposition of an aggregate sentence that reflected the cumulative impact of the offences. The court had to consider the impact on the victims, the principle of proportionality, and the broader societal need to protect the community. In delivering the judgment, the court meticulously weighed these factors and the relevant legal principles to arrive at a just and balanced sentence.

In its reasoning, the court considered the detailed circumstances of the offences, the impact on the victims, and the need for an appropriate punitive response. The court determined that an aggregate non-parole period of two years and one month was appropriate, with the sentence commencing on 26 February 2020 and expiring on 25 March 2022. The aggregate head sentence was set at three years and six months, with the term beginning on the same date and ending on 25 August 2023. This sentence reflects a careful consideration of the need for punishment, deterrence, and the potential for rehabilitation of the offender.

Orders

Orders of the court

The offender is convicted of counts 2 and 4 in the indictment. I impose an aggregate non-parole period of two years and one month commencing on 26 February 2020 and expiring on 25 March 2022 when the offender will be eligible for release to parole. I impose an aggregate head sentence of 3 years and 6 months commencing on 26 February 2020 expiring on 25 August 2023.

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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Medium Neutral Citation:	R v DS [2020] NSWDC 66
Hearing dates:	13 February 2020
Date of orders:	28 February 2020
Decision date:	28 February 2020
Jurisdiction:	Criminal
Before:	Letherbarrow SC DCJ
Decision:	The offender is convicted of counts 2 and 4 in the indictment. I impose an aggregate non-parole period of two years and one month commencing on 26 February 2020 and expiring on 25 March 2022 when the offender will be eligible for release to parole. I impose an aggregate head sentence of 3 years and 6 months commencing on 26 February 2020 expiring on 25 August 2023.
Catchwords:	CRIME – Sexual offences – Aggravated indecent assault SENTENCING – Penalties – Imprisonment – Aggregate sentence
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Bail Act 2013 (NSW)
Cases Cited:	Dousha v R [2008] NSWCCA 263 R v Fisher (1989) A Crim R 442 Markarian v R (2006) 28 CLR 357 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295
Category:	Sentence
Parties:	Regina (Crown) DS (Offender)
Representation:	Counsel: C Reynolds (Crown) P Harper (Defence) Solicitors: Office of the Director of Public Prosecutions (Crown) Hamilton Janke Lawyers (Defence)
File Number(s):	2018/00106233
Publication restriction:	Non-publication order re identity of complainant, child witnesses and name of the offender.