R v DT - [2019] NSWDC 673

District Court

New South Wales

Medium Neutral Citation: R v DT [2019] NSWDC 673
Hearing dates: 1 November 2019
Date of orders: 08 November 2019
Decision date: 08 November 2019
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
See [90]

Catchwords: SENTENCING – Young offender – Child sex offences – Whether no other penalty than imprisonment appropriate – Where ICO is not an available penalty even where offender is a young person
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) s 6
Crimes Act 1900 (NSW) ss 61M(2), 61O(1), 66A(1), 66B
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2018 (NSW)
Cases Cited: BP v R [2010] NSWCCA 159
Paul Campbell v R [2018] NSWCCA 87
R v Georgopoulos [2010] NSWCCA 246
R v Seller; R v McCarthy [2013] NSWCCA 42
R v Zamagias [2002] NSWCCA 17
Sabra v R [2015] NSWCCA 38
Texts Cited: N/A
Category: Sentence
Parties: Regina (Crown)
DT (Offender)
Representation:
Counsel:

Mr R Kotsis (for the Crown)
Mr S Howell (for the Offender)

Solicitors:
Director of Public Prosecutions
Legal Aid NSW

File Number(s): 19/22653
Publication restriction: Section 15A(1) of the Children (Criminal Proceedings) Act applies in relation to the names of the Victim and the Offender

Judgment

The Victim, ET, resided at Bradbury with her mother, father and siblings. She was born in 2005. The Offender, DT, is the Victim’s older cousin, once removed. He was born in 1998.
The Offender had pleaded guilty to 4 charges being:

Sequence 1: Indecent assault on a person under 16 years of age contrary to section 61M(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 10 years imprisonment.

Sequence 3: Sexual intercourse with a person under the age of 10 years contrary to section 66A(1) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 25 years imprisonment.

Sequence 5: Incite Victim under 10 years to commit an indecent act contrary to section 61O(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 7 years imprisonment.

Sequence 6: Attempt sexual intercourse with a person under the age of 10 years contrary to section 66B of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 25 years imprisonment.

The standard non-parole period applicable to the offences the subject of sequences 1 and 3 do not apply in this instance. [1] There is no standard non-parole period which attaches to sequences 5 and 6.
1. S 54D(3) of the Crimes (Sentencing Procedure Act 1999 (NSW).
Although Sequences 1 and 5 represented serious children’s indictable offences capable of being dealt with under the Children (Criminal Proceedings) Act 1987 (NSW), the parties accepted that all matters should be dealt with according to law. [2]
2. T 45.50.
The agreed facts indicate two incidents during which the offending conduct occurred.

Agreed Facts

The Mobile Phone Incident – Sequence 1

On a day between 7 July 2014 and 7 July 2015, the Offender…

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 DT

Details

AGLC: R v DT [2019] NSWDC 673
Case: [2019] NSWDC 673
Decision Date: 08 November 2019

CaseChat Overview and Summary

The case of R v DT involved a young offender, DT, who was convicted of multiple child sex offences. The matter was heard in the relevant court where the sentencing of DT was to be determined. The primary issue before the court was whether imprisonment was the only appropriate penalty for DT's crimes, particularly considering his age and the unavailability of an Intensive Corrections Order (ICO) as a sentencing option.

The court had to consider the nature and seriousness of DT's offences, his age at the time of the offences, and the principles of sentencing that apply to young offenders. It was essential to balance the need for punishment and deterrence with the rehabilitative needs of a young person. The court also had to consider whether the absence of ICO as a sentencing option meant that imprisonment was the only viable penalty available under the law.

In its decision, the court acknowledged the gravity of DT's offences, which involved significant breaches of trust and caused substantial harm to his victims. The court noted that while DT's age was a mitigating factor, it did not absolve him of responsibility. The court concluded that given the seriousness of the offences and the unavailability of ICO, imprisonment was the only appropriate penalty. The court further found that an ICO was not suitable due to the nature of the offences and the need to protect the community.

The final orders of the court were detailed in [90], where it was specified that DT would serve a term of imprisonment, reflecting the court's determination that no other penalty was appropriate in the circumstances of the case.

Orders

Orders of the court

See [90]

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v DT [2019] NSWDC 673
Hearing dates:	1 November 2019
Date of orders:	08 November 2019
Decision date:	08 November 2019
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	See [90]
Catchwords:	SENTENCING – Young offender – Child sex offences – Whether no other penalty than imprisonment appropriate – Where ICO is not an available penalty even where offender is a young person
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) s 6 Crimes Act 1900 (NSW) ss 61M(2), 61O(1), 66A(1), 66B Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2018 (NSW)
Cases Cited:	BP v R [2010] NSWCCA 159 Paul Campbell v R [2018] NSWCCA 87 R v Georgopoulos [2010] NSWCCA 246 R v Seller; R v McCarthy [2013] NSWCCA 42 R v Zamagias [2002] NSWCCA 17 Sabra v R [2015] NSWCCA 38
Texts Cited:	N/A
Category:	Sentence
Parties:	Regina (Crown) DT (Offender)
Representation:	Counsel: Mr R Kotsis (for the Crown) Mr S Howell (for the Offender) Solicitors: Director of Public Prosecutions Legal Aid NSW
File Number(s):	19/22653
Publication restriction:	Section 15A(1) of the Children (Criminal Proceedings) Act applies in relation to the names of the Victim and the Offender