R v Fleming - [2021] NSWDC 453

District Court

New South Wales

Medium Neutral Citation: R v Fleming [2021] NSWDC 453
Hearing dates: 2 July 2021
Decision date: 02 July 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 5 years 3 months with a non- parole period of 2 years 10 months.

Catchwords:
CRIME - Aggravated sexual intercourse child over 14 but under 16 years – complainant under the influence of a drug
SENTENCING - Relevant factors on sentence – late guilty plea- some other facilitation of the course of justice – child victim on ‘grindr’ app- offender assumes protective role – offender also sexual exploits victim - immature adult offender - age differential- aggravating feature the use of alcohol and other drugs – absence of other aggravating features - victim non-oppositional to sexual acts - impact on victim - ill health - COVID 19 – assaulted in gaol - compliance with bail conditions - good prospects if giving assistance - special circumstances

Legislation Cited:
Crimes Act (NSW) 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115
Bell v R [2019] NSWCCA 251
Brown v R [2020] VSC 60
Dawkins v R [2018] NSWCCA 278
Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150
Nelson V R [2016] NSWCCA 130
R v O'Connor [2014] NSWCCA 53: (2014) 239 A Crim R 487
Silvano v R [2008] NSWCCA 118
The Queen v De Simoni (1981) 147 CLR 383
Wakeling v R [2016] NSWCCA 33

Category: Sentence
Parties: Bryce Fleming (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr B Clark (for the offender)
Solicitors:
Kells (for the offender)
Mr D Coulton, Solicitor Advocate (for Director of Public Prosecutions)

File Number(s): 2020/00006268
Publication restriction: 1. The name of the complainant is not to be published, nor is any other material that could lead to the identification of the child complainant: s578A of the Crimes Act 1900; S15A Children (Criminal Proceedings) Act 1987.
2. The Complainant is referred to in this judgment by a pseudonym

sentence – ex tempore revised

Introduction

Bryce Fleming was born in 1999. He is for sentence today for six offences that occurred between July and October 2019. The complainant in this matter, Scott (a pseudonym), was born in October 2004. Earlier this year, Fleming was arraigned and pleaded guilty to five counts of sexual intercourse with the young person, then aged 14, in circumstances of aggravation, namely, that Fleming took advantage of the young person, being under the influence of a drug, in order to commit the offence. All of those matters are pursuant to s 66C(4) Crimes Act (NSW) 1900. They carry a maximum penalty of 12 years imprisonment, and for an offence, which taking into account only objective factors, falls in the middle of the range, there is a standard non‑parole period of five years. Count 4 charges…

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 Fleming

Details

AGLC: R v Fleming [2021] NSWDC 453
Case: [2021] NSWDC 453
Decision Date: 02 July 2021

CaseChat Overview and Summary

The case of R v Fleming involved a dispute concerning an aggravated sexual assault on a child over 14 but under 16 years of age. The incident occurred while the complainant was under the influence of a drug, and the matter was brought before the court for sentencing. The offender, Mr. Fleming, faced multiple charges, including aggravated sexual intercourse with a child and other related offences. The court was tasked with determining the appropriate sentence, taking into account various factors and mitigating circumstances presented by both parties.

The legal issues before the court included whether the offender's late guilty plea, facilitation of the course of justice, and his role as a protector and exploiter of the victim warranted consideration in determining the sentence. Other factors considered were the age differential between the offender and the victim, the use of alcohol and drugs during the offence, the impact on the victim, and the offender's prospects of rehabilitation. The court had to balance these factors to arrive at a just and appropriate sentence.

In delivering the judgment, the court acknowledged the offender's late guilty plea and the facilitation of the course of justice. It considered the offender's assumption of a protective role and his sexual exploitation of the victim, who was found on a dating app. The court noted the offender's immaturity and the age differential as factors that could have influenced his actions. The use of alcohol and drugs during the offence was seen as an aggravating feature, though the absence of other aggravating factors was also noted. The court assessed the impact on the victim, including the victim's non-oppositional stance and the resulting ill health, including the effects of COVID-19. The offender's compliance with bail conditions, prospects of rehabilitation, and the special circumstances of the case were all weighed in the sentencing decision.

The court imposed an aggregate sentence of 5 years and 3 months, with a non-parole period of 2 years and 10 months. This sentence reflects the court's consideration of all the relevant factors and mitigating circumstances presented in the case.

Orders

Orders of the court

Aggregate sentence of 5 years 3 months with a non- parole period of 2 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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Medium Neutral Citation:	R v Fleming [2021] NSWDC 453
Hearing dates:	2 July 2021
Decision date:	02 July 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 5 years 3 months with a non- parole period of 2 years 10 months.
Catchwords:	CRIME - Aggravated sexual intercourse child over 14 but under 16 years – complainant under the influence of a drug SENTENCING - Relevant factors on sentence – late guilty plea- some other facilitation of the course of justice – child victim on ‘grindr’ app- offender assumes protective role – offender also sexual exploits victim - immature adult offender - age differential- aggravating feature the use of alcohol and other drugs – absence of other aggravating features - victim non-oppositional to sexual acts - impact on victim - ill health - COVID 19 – assaulted in gaol - compliance with bail conditions - good prospects if giving assistance - special circumstances
Legislation Cited:	Crimes Act (NSW) 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115 Bell v R [2019] NSWCCA 251 Brown v R [2020] VSC 60 Dawkins v R [2018] NSWCCA 278 Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 Nelson V R [2016] NSWCCA 130 R v O'Connor [2014] NSWCCA 53: (2014) 239 A Crim R 487 Silvano v R [2008] NSWCCA 118 The Queen v De Simoni (1981) 147 CLR 383 Wakeling v R [2016] NSWCCA 33
Category:	Sentence
Parties:	Bryce Fleming (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr B Clark (for the offender) Solicitors: Kells (for the offender) Mr D Coulton, Solicitor Advocate (for Director of Public Prosecutions)
File Number(s):	2020/00006268
Publication restriction:	1. The name of the complainant is not to be published, nor is any other material that could lead to the identification of the child complainant: s578A of the Crimes Act 1900; S15A Children (Criminal Proceedings) Act 1987. 2. The Complainant is referred to in this judgment by a pseudonym