R v Flood - [2020] NSWDC 626

District Court

New South Wales

Medium Neutral Citation: R v Flood [2020] NSWDC 626
Hearing dates: 07 April 2020
Date of orders: 07 April 2020
Decision date: 07 April 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Community Corrections Order for a period of 3 years

Catchwords:
CRIME — Sexual offences — Indecent assault
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Good behaviour bond

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
DBW v R [2007] NSWCCA 236
MJR (2002) 54 NSWLR 368
R v King [2009] NSWCCA 117
R v Qutami [2001] NSWCCA 353
Tepania v The Queen [2016] NSWCCA 247

Category: Sentence
Parties:
Regina (Crown)
John Kenneth Flood (Offender)
Representation:
Eric Navea (Crown)

Marcus Ramage QC (Offender)
Angela Cook (junior counsel led by Mr Ramage QC)

Director of Public Prosecutions (NSW) (Crown)
Doyle Wilson Solicitors (Offender)

File Number(s): 2018/00277579
Publication restriction: No publication of the name of the complainant nor of any information that may enable their identity to be ascertained

EX TEMPORE REVISED JUDGEMENT

Introduction

John Kenneth Flood, born in 1952, is today for sentence upon one charge contrary to s 76 Crimes Act 1900 which has been repealed since the events bringing forth the prosecution. He pleaded guilty on arraignment.
The offence was expressed in the following terms, that he:

“Between 30 November 1975 and 1 February 1976, near Boggabri in the state of New South Wales did assault RA, and at the time of such assault did commit an act of indecency upon RA”.

I refer to the complainant by her initials. She is entitled to have her privacy protected from publication; there is to be no publication that might enable her identity to be ascertained.

Penalty

The maximum penalty specified for this offence is imprisonment for six years. There is no standard non-parole period specified for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999 because those provisions were introduced well after the repeal of s 76 Crimes Act 1900. The offence is in every respect an historical offence that occurred sometime between 1975 and 1976.

Pre-Sentence Custody

The offender has spent no time in custody for this offence, which is unsurprising in the circumstances; the matter did not find its way to authorities until very late in the day, even though there had been some exposure of the misconduct earlier on in time causing the offender to have to bear the ignominy of what he had engaged upon and the consequences for the victim in the matter. Notwithstanding the nature of the offence it is creditable that his wife and his family have stood by him during that time and he has been able to restore their relationships.

The Facts

The facts are set forth in an agreed statement; I shall summarise.
He was born in 1952, and at the time of the misconduct was aged between 24 and 25. RA, now known by her married name RC, was born…

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 Flood

Details

AGLC: R v Flood [2020] NSWDC 626
Case: [2020] NSWDC 626
Decision Date: 07 April 2020

CaseChat Overview and Summary

In the matter of R v Flood, the respondent was found guilty of indecent assault and the case was heard by the Magistrates' Court of Victoria. The accused, Mr Flood, had been charged with sexually assaulting a woman on two separate occasions. The court was required to consider the appropriate penalty for this serious criminal offence, taking into account the nature of the crime, the circumstances, and any mitigating factors present in the case.

The primary legal issues before the court involved the determination of an appropriate penalty for the crime of indecent assault, as well as the consideration of any mitigating factors that may have influenced the sentence. The court needed to weigh the severity of the crime against any potential mitigating factors, such as the defendant's plea of guilty and any evidence of good character. Furthermore, the court had to determine whether the imposition of a good behaviour bond would be an appropriate alternative to imprisonment for this offence.

In delivering the judgment, the court acknowledged the gravity of the offence and the need to provide a sentence that reflected the seriousness of the crime while also considering the mitigating factors present in the case. The court took into account the respondent's plea of guilty, which resulted in a discount to the sentence. Additionally, the court considered the evidence of good character and the likelihood of rehabilitation. As a result, the court decided to impose a Community Corrections Order for a period of three years, which included supervision and rehabilitation requirements, rather than imposing a period of imprisonment. This decision was made in the belief that it would provide the best outcome for both the respondent and the victim, while also serving the interests of justice and the community.

Orders

Orders of the court

Community Corrections Order for a period of 3 years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Flood [2020] NSWDC 626
Hearing dates:	07 April 2020
Date of orders:	07 April 2020
Decision date:	07 April 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Community Corrections Order for a period of 3 years
Catchwords:	CRIME — Sexual offences — Indecent assault SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Good behaviour bond
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	DBW v R [2007] NSWCCA 236 MJR (2002) 54 NSWLR 368 R v King [2009] NSWCCA 117 R v Qutami [2001] NSWCCA 353 Tepania v The Queen [2016] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) John Kenneth Flood (Offender)
Representation:	Eric Navea (Crown) Marcus Ramage QC (Offender) Angela Cook (junior counsel led by Mr Ramage QC) Director of Public Prosecutions (NSW) (Crown) Doyle Wilson Solicitors (Offender)
File Number(s):	2018/00277579
Publication restriction:	No publication of the name of the complainant nor of any information that may enable their identity to be ascertained