R v Flax - [2014] NSWDC 268

District Court

New South Wales

Medium Neutral Citation: R v Flax [2014] NSWDC 268
Decision date: 05 November 2014
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
For the offence of sexual intercourse with a child under 10, a sentence of 5 years imprisonment with a non-parole period of 2 years

Catchwords: CRIMINAL LAW - particular offence - offences against the person - sexual intercourse with a child under 10 - performed fellatio on the child - grandfather-like relationship - sentence - relevant factors - plea of guilty despite vehement denial of offence - plea to protect family - sentenced on basis of agreed facts - plea entered relatively late - 10% discount - gravity of offence - extremely serious offence - relevance of standard non-parole period - significant breach of trust - below the middle of the range but not towards the bottom of the range - spontaneous and isolated offence -nature and circumstances of offender - no prior criminality - good character taken into account in mitigation - 66 years of age - sick and disabled partner - hardship to third party not such that it would warrant a non-custodial sentence - low risk for recidivism - special circumstances for adjusting ratio between head sentence and non-parole period - age of offender - first time in custody - first offence
Legislation Cited: Crimes Act 1900 (NSW), s 66A
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5A)
Cases Cited: Dipangkear v R [2010] NSWCCA 156
Meissner v The Queen (1995) 184 CLR 132
R v Edwards (1996) 90 ACrimR 510
R v Fisher (1989) 40 ACrimR 442
R v Wirth (1976) 14 SASR 291
Category: Sentence
Parties: Regina (Crown)
Michael Flax (offender)
Representation:
Counsel:
J Fitzgerald (offender)
Solicitors:
H Fitzhardinge (Director of Public Prosecutions)

File Number(s): 2013/00046563
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 there is to be no publication of the victim's name or anything that may lead to identification of the victim. Identifying information has been removed from this version of the judgment to comply with the statute and, in some cases, replaced with pseudonyms (which are colours).

Judgment

There are three prominent factors operating in this case where I have to sentence a 66 year old man for sexually assaulting a seven year old boy.
The first and most prominent factor is that he has pleaded guilty to an extremely serious offence. Parliament has fixed a maximum of 25 years imprisonment to the offence. Not only that, it has fixed a standard non-parole period of 15 years imprisonment to this offence.
The second factor is that the offender has a sick and disabled partner who is the grandmother of the victim of his offence.
The third factor is that although he has pleaded guilty, he vehemently denies committing the offence.
The man’s name is Michael Flax. He has been charged with the crime of sexual intercourse with a child under 10. That is an offence against s 66A of the Crimes Act 1900

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 Flax

Details

AGLC: R v Flax [2014] NSWDC 268
Case: [2014] NSWDC 268
Decision Date: 05 November 2014

CaseChat Overview and Summary

The case of R v Flax involved a defendant who pleaded guilty to having sexual intercourse with a child under 10 years old. The relationship between the offender and the victim was described as grandfather-like. The case was heard in the Supreme Court of Victoria. The court was required to consider the relevant factors in sentencing the offender, taking into account the plea of guilty, the plea entered relatively late, the nature and circumstances of the offender, and the gravity of the offence.

The legal issues before the court included the appropriate sentence for the offence, the factors that should be considered in determining the sentence, and the relevance of the standard non-parole period. The court acknowledged that the offence was extremely serious and a significant breach of trust. However, the court also considered the offender's age, good character, and the fact that this was a spontaneous and isolated offence. The court also took into account the offender's sick and disabled partner and the hardship this would cause them if the offender was imprisoned.

The court ultimately sentenced the offender to 5 years imprisonment with a non-parole period of 2 years. The court noted that the offender's age and the fact that this was his first offence were special circumstances that warranted adjusting the ratio between the head sentence and the non-parole period. The court also considered the low risk of recidivism and the fact that the offender was first time in custody. The court found that the offender's age and good character were mitigating factors, but the gravity of the offence and the breach of trust meant that a custodial sentence was appropriate. The final orders of the court were that the offender be sentenced to 5 years imprisonment with a non-parole period of 2 years.

Orders

Orders of the court

For the offence of sexual intercourse with a child under 10, a sentence of 5 years imprisonment with a non-parole period of 2 years

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 Flax [2014] NSWDC 268
Decision date:	05 November 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For the offence of sexual intercourse with a child under 10, a sentence of 5 years imprisonment with a non-parole period of 2 years
Catchwords:	CRIMINAL LAW - particular offence - offences against the person - sexual intercourse with a child under 10 - performed fellatio on the child - grandfather-like relationship - sentence - relevant factors - plea of guilty despite vehement denial of offence - plea to protect family - sentenced on basis of agreed facts - plea entered relatively late - 10% discount - gravity of offence - extremely serious offence - relevance of standard non-parole period - significant breach of trust - below the middle of the range but not towards the bottom of the range - spontaneous and isolated offence -nature and circumstances of offender - no prior criminality - good character taken into account in mitigation - 66 years of age - sick and disabled partner - hardship to third party not such that it would warrant a non-custodial sentence - low risk for recidivism - special circumstances for adjusting ratio between head sentence and non-parole period - age of offender - first time in custody - first offence
Legislation Cited:	Crimes Act 1900 (NSW), s 66A Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5A)
Cases Cited:	Dipangkear v R [2010] NSWCCA 156 Meissner v The Queen (1995) 184 CLR 132 R v Edwards (1996) 90 ACrimR 510 R v Fisher (1989) 40 ACrimR 442 R v Wirth (1976) 14 SASR 291
Category:	Sentence
Parties:	Regina (Crown) Michael Flax (offender)
Representation:	Counsel: J Fitzgerald (offender) Solicitors: H Fitzhardinge (Director of Public Prosecutions)
File Number(s):	2013/00046563
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900 there is to be no publication of the victim's name or anything that may lead to identification of the victim. Identifying information has been removed from this version of the judgment to comply with the statute and, in some cases, replaced with pseudonyms (which are colours).