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R v Farrell (a pseudonym)

R v Farrell (a pseudonym)

Case [2022] NSWDC 695 18 November 2022

Aggravated Sexual Assault

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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…

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 Farrell (a pseudonym)

Details

AGLC: R v Farrell (a pseudonym) [2022] NSWDC 695
Case: [2022] NSWDC 695
Decision Date: 18 November 2022

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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Citations

AGLC Citation

R v Farrell (a pseudonym) [2022] NSWDC 695

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 23 of 23 shown

Owen v R
[2022] NSWCCA 214 Para 33

…nces, judges are "obliged to resolve the disputed issue as to where this particular offence fell on the spectrum of objective seriousness.": Owen v R [2022] NSWCCA 214 at [49].…
R v Lau
[2022] NSWCCA 131 Para 3

…Duration is often irrelevant to the shock and distress of the experience: SB v R [2022] NSWCC164; R v Lau [2022] NSWCCA 131; Cowling v R [2015] NSWCCA 213.…
Tepania v The Queen
[2018] NSWCCA 247 Para 44

…al to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27]; [2011] HCA 39 Tepania v R [2018] NSWCCA 247 at [103] to [120].…
Director of Public Prosecutions (Cth) v Beattie
[2017] NSWCCA 301 Para 66

…pective of the observer, whether they are the offender, the victim, the community or an appeal court: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.…
Chamseddine v R
[2017] NSWCCA 176 Para 16

…e prohibition on any sexual activity with a child: Clarkson [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1; Chamseddine v R [2017] NSWCCA 176. The law is strictly enforced and is intended to protect children from the physical and psychological harm taken to be caused by premature sexual act…
R v Van Ryn
[2016] NSWCCA 1 Para 16

…d is serious. There is an absolute prohibition on any sexual activity with a child: Clarkson [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1; Chamseddine v R [2017] NSWCCA 176. The law is strictly enforced and is intended to protect children from the physical and psychological harm taken t…
Cowling v R
[2015] NSWCCA 213 Para 3

…Duration is often irrelevant to the shock and distress of the experience: SB v R [2022] NSWCC164; R v Lau [2022] NSWCCA 131; Cowling v R [2015] NSWCCA 213.…
R v Gavel
[2014] NSWCCA 56 Para 16

…sexual exploitation of a child is serious. There is an absolute prohibition on any sexual activity with a child: Clarkson [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1; Chamseddine v R [2017] NSWCCA 176. The law is strictly enforced and is intended to protect children from the physical a…
MRW v R
[2011] NSWCCA 260 Para 26

…ount 6 has an element “under authority.” Abuse of trust and authority are distinct concepts although often arising out of the same facts: MRW v R [2011] NSWCCA 260 at [77]. Care must be taken and I must be cautious of giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating f…
Muldrock v The Queen
[2011] HCA 39 Para 31

…I note that, referring to the standard non-parole period requirements, the High Court in Muldrock v The Queen ; 244 CLR 120; [2011] HCA 39 made a very pertinent comment at [29]:…
R v NJK
[2011] NSWCCA 151 Para 41

…ce RS Hulme described the relativity between the maximum and the standard non-parole period as “absurd” but the different Court of Appeal R v NJK [2011] NSWCCA 151 noted], "nevertheless, an eight-year standard non-parole period has been prescribed by the legislature and the Courts must give effect to i:." at [40.…
Clarkson v R
[2011] VSCA 152 Para 16

…Every act that involves the sexual exploitation of a child is serious. There is an absolute prohibition on any sexual activity with a child: Clarkson [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1; Chamseddine v R [2017] NSWCCA 176. The law is strictly enforced and is intended to protect…
BT v R
[2010] NSWCCA 267 Para 41

…subject to criticism, justifiably so. Section 61M2 and its standard non-parole period have now been repealed. But I have to apply it here. In BT v R [2010] NSWCCA 267, Justice RS Hulme described the relativity between the maximum and the standard non-parole period as “absurd” but the different Court of Appeal R v N…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 68

…burdensome than the average prisoner, if there is such a thing: R v Sellen (1991) 57 A Crim R 313; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, third dot point, at [177]. All those matters warrant a longer period on parole and a finding of special circumstances.…
Cahyadi v R
[2007] NSWCCA 1 Para 62

…riate for the totality of the offender's crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63; Postiglione v The Queen (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41…
R v MAK
[2006] NSWCCA 381 Para 63

…ffences are discreet and separate but of less relevance where the matters form part of course of conduct such as here, for counts 1, 2 and 3: R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at 164-165 [18].…
Markarian v The Queen
[2005] HCA 25

…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…
R v Way
[2004] NSWCCA 131

…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 dyna…
Regina v Salazar
[2004] NSWCCA 13

…1 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 o…
DPP v DJK
[2003] VSCA 109 Para 38

…the court's attention the damage done to him and the sense of anguish which had been created by this offending: Director of Public Prosecutions v DJK [2003] VSCA 109 at [17] & [18]…
Weininger v The Queen
[2003] HCA 14

…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.…
Postiglione v the Queen
[1997] HCA 26 Para 62

…gate sentence is just and appropriate for the totality of the offender's crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63; Postiglione v The Queen (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41…
Mill v The Queen
[1988] HCA 70 Para 62

…o structure the sentence such that the overall aggregate sentence is just and appropriate for the totality of the offender's crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63; Postiglione v The Queen (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41…

Legislation cited in this decision · 5

Bail Act 2013 (NSW)
1 mention (from Para 3)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (High Risk Offenders) Act 2006 (NSW)
1 mention (from Para 73)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention

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…