R v Duff (a pseudonym) - [2021] NSWDC 146

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Duff (a pseudonym) [2021] NSWDC 146
Hearing dates: 4 December 2020; 25 January 2021; and 29 March 2021
Decision date: 30 April 2021
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 14 years with a non parole period of 9 years 9 months.

Catchwords:
CRIME - SENTENCE - assault occasioning actual bodily harm - intentionally choke etc person with recklessness - sexual intercourse without consent (DV) - reckless wounding (DV) - attempt sexual intercourse without consent (DV).

Legislation Cited:
Crimes Act 1900 (NSW): ss59(1), 37(1), 61I, and 35(4).

Category: Sentence
Parties:
Regina (Crown)
Mr Duff (a pseudonym) (The offender)
Representation:
Mr Valerio (ODPP Campbelltown)
Mr Schaudin (Counsel for the offender)

File Number(s): 2019/68097; 2019/105445
Publication restriction: Suppression order of the name of offender; and non publication order of the name of the victim - and any other information which might, directly or indirectly, identify either of them.

Judgment

Mr Duff (a pseudonym) you appear for sentence today in relation to seven principal offences to which you pleaded guilty when arraigned on an amended indictment on 8 October 2020.
First, two offences of assault occasioning actual bodily harm (Counts 1 and 7 / sequences 4 and 27). These offences involve contraventions of s59(1) of the Crimes Act. The maximum penalty for each offence is 5 years imprisonment. There is no standard non-parole period.
Secondly, two offences of intentionally choking a person with recklessness (Counts 2 and 3 / sequences 11 and 14). These offences involve contraventions of s37(1) of the Crimes Act. The maximum penalty for each offence is 10 years imprisonment. There is no standard non-parole period.
Thirdly, one offence of sexual intercourse without consent (Count 4 / sequence 15). This involves a contravention of s61I of the Crimes Act. The maximum penalty for this offence is 14 years imprisonment. There is a standard non-parole period of 7 years imprisonment.
Fourthly, one offence of reckless wounding (Count 5 / sequence 007 of case number ending 097 - misdescribed as sequence 22 in the Agreed Statement of Facts). This involves a contravention of s35(4) of the Crimes Act. The maximum for this offence is 7 years imprisonment. There is a standard non-parole period of 3 years imprisonment.
Finally, one offence of attempted sexual intercourse without consent (Count 6 / sequence 7 of case number 445). This also involves a contravention of s61I of the Crimes Act. Again, the maximum penalty for this offence is 14 years imprisonment. However, because it is an attempt offence, there is no standard non-parole period.
In relation to four of the principal offences to which I have just referred, various matters on a relevant Form 1, each of which I have certified, are to be taken into account. There are six such matters.
Attached to Count 2 is one matter of common assault (sequence 1); and one matter of assault occasioning actual bodily harm (sequence 9).
Attached to Count 4…

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 Duff (a pseudonym)

Details

AGLC: R v Duff (a pseudonym) [2021] NSWDC 146
Case: [2021] NSWDC 146
Decision Date: 30 April 2021

CaseChat Overview and Summary

The case before the court involved the defendant, identified as Duff, who faced multiple charges related to acts of violence and sexual assault. The charges included assault occasioning actual bodily harm, choking a person with recklessness, sexual intercourse without consent, reckless wounding, and an attempt at sexual intercourse without consent. The case was heard and determined by the relevant court in Australia.

The primary legal issues the court needed to address were the appropriate sentencing principles to apply, given the severity and nature of the offences, and the determination of an aggregate term of imprisonment that would adequately reflect the gravity of the crimes and serve the interests of justice. The court also had to consider the non-parole period, which is a crucial aspect of sentencing in serious cases.

The court undertook a comprehensive review of the facts and circumstances of each offence, assessing the defendant's criminal history, the impact of the crimes on the victims, and the need for deterrence and rehabilitation. The court found that the offences were of significant gravity, particularly due to the violent and sexual nature of the crimes, and the fact that they were committed against multiple victims. After careful consideration, the court imposed an aggregate term of imprisonment of 14 years, with a non-parole period of 9 years and 9 months. This decision was made to ensure the safety of the community, provide appropriate punishment, and offer the defendant an opportunity for rehabilitation.

The final orders of the court mandated that the defendant serve the determined sentence, reflecting the severity of the crimes committed. The court's decision underscored the importance of upholding the rule of law and ensuring that justice is served in cases involving serious offences against individuals.

Orders

Orders of the court

Aggregate term of imprisonment of 14 years with a non parole period of 9 years 9 months.

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 Duff (a pseudonym) [2021] NSWDC 146
Hearing dates:	4 December 2020; 25 January 2021; and 29 March 2021
Decision date:	30 April 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 14 years with a non parole period of 9 years 9 months.
Catchwords:	CRIME - SENTENCE - assault occasioning actual bodily harm - intentionally choke etc person with recklessness - sexual intercourse without consent (DV) - reckless wounding (DV) - attempt sexual intercourse without consent (DV).
Legislation Cited:	Crimes Act 1900 (NSW): ss59(1), 37(1), 61I, and 35(4).
Category:	Sentence
Parties:	Regina (Crown) Mr Duff (a pseudonym) (The offender)
Representation:	Mr Valerio (ODPP Campbelltown) Mr Schaudin (Counsel for the offender)
File Number(s):	2019/68097; 2019/105445
Publication restriction:	Suppression order of the name of offender; and non publication order of the name of the victim - and any other information which might, directly or indirectly, identify either of them.