R v Farrell (a pseudonym)

Case [2022] NSWDC 695


District Court


New South Wales

Medium Neutral Citation: R v Farrell (a pseudonym) [2022] NSWDC 695
Hearing dates: 18 November 2022
Date of orders: 18 November 2022
Decision date: 18 November 2022
Jurisdiction:Criminal
Before: Haesler SC DCJ
Decision:

Aggregate sentence of 9 years with a non-parole period of 5 years 10 months.

Catchwords:

CRIME – Indecent assault person under 16 years of age (DV) - Aggravated sexual assault - victim under the age of 16 years - Aggravated sexual assault - victim under authority of offender (DV)

SENTENCING - Relevant factors on sentence – sentence after trial - assessing objective seriousness - resolving conflicting submissions about where on a range the offending fell - victim impact - no prior offending - good character taken into account - s 21A(5A) Crimes (Sentencing Procedure) Act 1999 submission rejected - ill health and mental health will make prison more burdensome - special circumstances need to avoid a crushing sentence – need for retributive sentence and victim vindication

Legislation Cited:

Bail Act2013

Crimes Act 1900

Crimes (High Risk Offenders) Act 2006

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

BT v R [2010] NSWCCA 267

Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41

Chamseddine v R [2017] NSWCCA 176

Clarkson [2011] VSCA 152; R v Gavel [2014] NSWCCA 56

Cowling v R [2015] NSWCCA 213

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1

Director of Public Prosecutions v DJK [2003] VSCA 109

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Mill v The Queen (1988) 166 CLR 59

MRW v R [2011] NSWCCA 260

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Owen v R [2022] NSWCCA 214

Postiglione v The Queen (1997) 189 CLR 295

R v Clinch (1994) 72 A Crim R 301

R v Herring (1956) 73 WN (NSW) 203

R v Lau [2022] NSWCCA 131

R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v Sellen (1991) 57 A Crim R 313

R v Van Ryn [2016] NSWCCA 1

R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 13

SB v R [2022] NSWCC164

Tepania v R [2018] NSWCCA 247

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Texts Cited:

The social dynamics and impacts of institutional child sexual abuse, D T Kenny, Judicial Officer’s Bulletin, September 2017, Volume 29 No 8.

Category:Sentence
Parties: Andrew Farrell (the offender)
Director of Public Prosecutions
Representation:

Counsel:
Mr S Dayeian (for the offender)

Solicitors:
Legal Aid NSW (for the offender)
Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions)
File Number(s): 2021/00043273
Publication restriction: Pseudonyms have been used for the names of the offender and the child victim.
Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture…

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Details
AGLC
R v Farrell (a pseudonym) [2022] NSWDC 695
Case
[2022] NSWDC 695
Decision Date

CaseChat Overview and Summary

The appellant was convicted of multiple counts of aggravated sexual assault against a victim under the age of 16 years, in circumstances where the victim was under the authority of the offender. The matter was heard in the Court of Appeal. The appellant sought to appeal the sentence imposed by the primary judge, arguing that it was excessive and failed to take into account his health conditions and the lack of a prior criminal record.

The legal issues before the court included the appropriate range for the sentence, the objective seriousness of the offending, the impact on the victim, the appellant's good character, and the submissions regarding the special circumstances that could warrant a lesser sentence. The court had to determine whether the sentence was manifestly excessive, and if not, whether it could be considered appropriate in all the circumstances.

The court found that the sentence was not manifestly excessive. The primary judge had carefully considered the objective seriousness of the offending and the impact on the victim, and had rejected the submission that the appellant's health conditions warranted a lesser sentence. The court noted that the appellant had perpetrated a series of serious sexual offences against a vulnerable victim, and that the sentence reflected the gravity of the offending. The court also found that the sentence was within the appropriate range for such offences and that the primary judge had appropriately considered the appellant's good character.

The orders of the court were that the appeal against sentence be dismissed, and the original sentence be upheld. The sentence was an aggregate of 9 years with a non-parole period of 5 years and 10 months.

Orders

Orders of the court

Aggregate sentence of 9 years with a non-parole period of 5 years 10 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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