R v Fox

Case [2011] NSWDC 250 24 November 2011

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District Court

New South Wales

Case Title: R v Fox

Medium Neutral Citation: [2011] NSWDC 250

Hearing Date(s): 24/4/11, 12/8/11, 14/10/11

Decision Date: 24 November 2011

Before: KING SC DCJ

Decision:
The overall effective accumulated non-parole period is four and a half years from 29 April 2011 and the balance of term is four and a half years, that is, the overall total accumulated sentence is nine years, that is, the accumulated non-parole period is 50% of the overall term.

I recommend that when released on parole the offender be subject to supervision by the Probation and Parole Service in particular with respect to sexual offending, counselling and/or treatment.

Catchwords: CRIMINAL - Sentence - Forms 1 - Buggery - Indecent assault - incite act of indecency - victims male and under 16 - paedophile grooming - consent - Victim Impact Statements

Legislation Cited: Crimes Act 1900 ss 79, 81, 61E (1), 61E(2)
Crimes (SP) Act 1999 ss 3A, 5, 21A(2), 32
Criminal Case Conferencing Trial Act 2008 s 6 (1) & (5) & (12)

Cases Cited: AB v The Queen (1999) 198 CLR 111
Clinton v The Queen [2009] NSWCCA 276
Featherstone v The Queen [2008] NSWCCA 71
R v Borkowski [2009] NSWCCA 102
R v Dib [2003] NSWCCA 117
R v JCW (2000) 112 A Crim R 466
R v MJR (2002) 54 NSWLR 368
R v Moon (2000) 117 A Crim R 497
R v Palu (2002) 134 A Crim R 174
R v S [2000] NSWCCA 13
R v Shore (1992) 66 A Crim R 37
R v SY & Anor [2003] NSWCCA 291
R v Thomson; R v Houlton [2000] 49 NSWLR 383
R v Totten [2003] NSWCCA 207

Category: Sentence

Parties: Regina
Fox, Mitchell Bruce

Representation

- Counsel: Crown: Ms K Shead
Defence: Mr J Glissan QC
Mr W. J. Wilcher

File Number(s): 2010/155562
2010/155570
2010/155573

Publication Restriction: NON-PUBLICATION ORDER RE NAMES OF VICTIMS AND EVIDENCE IDENTIFYING VICTIMS

SENTENCE

HIS HONOUR: Mitchell Bruce Fox appears for sentence in respect of seven offences, each involving prohibited sexual activity contrary to the Crimes Act1900 (the "Act"), with one of three male child victims on six separate occasions occurring within the period from 31 December 1979 to 1 January 1985 at various locations within the Sydney metropolitan area.
When sentencing in respect of three of the offences, Counts 4, 5 and 6, the Court is asked to take into consideration pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 a further offence contained on a separate Form 1.
The offender accessed each of the three male child victims by arrangement with associates who were paedophile procurers or pimps who had targeted young, vulnerable individuals and groomed them to the extent that they were each habituated to and compliant with sexual activity with adult males such as the offender. They were provided to the offender at his private residences at Bellevue Hill and Collaroy or on "Skipper-A-Clipper" cruisers, with or without payment to the child or…

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 Fox

Details

AGLC: R v Fox [2011] NSWDC 250
Case: [2011] NSWDC 250
Decision Date: 24 November 2011

CaseChat Overview and Summary

In the matter of R v Fox, the accused, who had previously pleaded guilty to charges of buggery, indecent assault, and inciting an act of indecency, was brought before the Supreme Court of Victoria. The victims in these cases were male and under the age of sixteen at the time of the offences. The court was tasked with determining an appropriate sentence for the accused's actions, which involved grooming and abusing minors. The proceedings included consideration of Victim Impact Statements, which detailed the profound and lasting effects of the crimes on the victims.

The central legal issues before the court were the nature and severity of the crimes committed, the vulnerability of the victims, and the appropriate sentence that would reflect both the need for punishment and the potential for rehabilitation. The court considered whether the sentence should focus on deterrence, retribution, or rehabilitation, and how to balance these considerations with the circumstances of the case. The court also needed to determine an appropriate non-parole period to ensure public safety and provide the victims with a sense of justice.

In delivering the judgment, the court emphasised the gravity of the offences, noting the significant harm caused to the victims, who were in a highly vulnerable position. The court found that the crimes demonstrated a pattern of predatory behaviour and a serious breach of trust. The court also took into account the Victim Impact Statements, which highlighted the long-term psychological impact on the victims. Considering the need for deterrence and the protection of the community, the court determined an overall total sentence of nine years, with a non-parole period of four and a half years. The court recommended that upon release, the offender should be subject to supervision by the Probation and Parole Service, focusing on sexual offending, counselling, and treatment to address the underlying issues.

The court's final orders were that the accumulated non-parole period is four and a half years from 29 April 2011, with the balance of the term being four and a half years, making the overall total accumulated sentence nine years. The court also recommended that the offender be subject to supervision by the Probation and Parole Service, with a focus on sexual offending, counselling, and treatment upon release on parole.

Orders

Orders of the court

The overall effective accumulated non-parole period is four and a half years from 29 April 2011 and the balance of term is four and a half years, that is, the overall total accumulated sentence is nine years, that is, the accumulated non-parole period is 50% of the overall term.

I recommend that when released on parole the offender be subject to supervision by the Probation and Parole Service in particular with respect to sexual offending, counselling and/or treatment.

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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Actions

Citations

R v Fox [2011] NSWDC 250

Most Recent Citation

R v Collins, John [2017] NSWDC 281

Cases Citing This Decision

R v Victor Madeley [2018] NSWDC 35
Citation 1 (Para 61)

…ore recently Denham v R [2016] NSWCCA 309. Mr Keller, counsel for the accused, referred me to the decisions of R v Jacobs [2011] NSWDC 34 and R v Fox [2011] NSWDC 250. Judge Garling in Jacobs referred to the decision of the Court of Criminal Appeal in Featherstone v R [2008] NSWCCA 71. I am very grateful for the Cr…
R v Collins, John [2017] NSWDC 281
Citation 2 (Para 10)

…Other District Court judgments again dealing with offences committed in the late ‘70’s, early 80’s, including R v Fox [2011] NSWDC 250 and Jacobs [2011] NSWDC 34.…

See all citing cases →

Cases Cited

Clinton v R [2009] NSWCCA 276
Citation 1 (Para 5)

…In Clinton [2009] NSWCCA 276 it was stated: "In any event, decisions about the significance of protective custody given before R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581 should be read in the light of that decision and the different approach that was then taken to the relevance of the fact that a person was i…
R v Robert Borkowski [2009] NSWCCA 102
Citation 2 (Para 26)

…7 Hodgson JA, with Barr J agreeing, at [5] to [6]; SY & Anor [2003] NSWCCA 291, Howie J, with Ipp JA and Whealy J agreeing at [85] to [87]; Borkowski [2009] NSWCCA 102, Howie J at [27] to [31] and the later qualification by Howie J as to what he meant in Borkowski .…
Featherstone v R [2008] NSWCCA 71
Citation 3 (Para 14)

…A matter of particular importance is referred to in Featherstone [2008] NSWCCA 71 by Bell JA, Adams and Latham JJ agreeing, at [33] to [47] referring to the general increase in sentences since the early eighties and the significant difference of non-parole periods under the then current legislation falling into a r…
R v Sukkar [2006] NSWCCA 92
Citation 4 (Para 5)

…approved in R v Way [2004] NSWCCA 131; 60 NSWLR 268 at [177] and has been applied to cases where assistance has been given to authorities: R v Sukkar [2006] NSWCCA 92."…
R v Way [2004] NSWCCA 131
Citation 5 (Para 5)

…result in harsher prison conditions. That change in approach was continued in R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304, was approved in R v Way [2004] NSWCCA 131; 60 NSWLR 268 at [177] and has been applied to cases where assistance has been given to authorities: R v Sukkar [2006] NSWCCA 92."…
R v Mostyn [2004] NSWCCA 97
Citation 6 (Para 5)

…the Court that revealed that protection did not necessarily result in harsher prison conditions. That change in approach was continued in R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304, was approved in R v Way [2004] NSWCCA 131; 60 NSWLR 268 at [177] and has been applied to cases where assistance has been given to…
R v Durocher-Yvon [2003] NSWCCA 299
Citation 7 (Para 5)

…In Clinton [2009] NSWCCA 276 it was stated: "In any event, decisions about the significance of protective custody given before R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581 should be read in the light of that decision and the different approach that was then taken to the relevance of the fact that a person was i…
R v SY [2003] NSWCCA 291
Citation 8 (Para 26)

…000] 49 NSWLR 383 and subsequent cases including, but not limited to Dib [2003] NSWCCA 117 Hodgson JA, with Barr J agreeing, at [5] to [6]; SY & Anor [2003] NSWCCA 291, Howie J, with Ipp JA and Whealy J agreeing at [85] to [87]; Borkowski [2009] NSWCCA 102, Howie J at [27] to [31] and the later qualification by Howi…
R v Totten [2003] NSWCCA 207
Citation 9 (Para 11)

…elevance in mitigation but the weight to be given to this circumstance will depend on the facts of the individual case: AB (1999) 198 CLR 111; Totten [2003] NSWCCA 207. On the facts asserted by the offender, it seems that he engaged in a mutually exploratory homosexual act with an older but young partner at age four…
R v Dib [2003] NSWCCA 117
Citation 10 (Para 26)

…considered with regard to the principles referred to in Thomson & Houlton [2000] 49 NSWLR 383 and subsequent cases including, but not limited to Dib [2003] NSWCCA 117 Hodgson JA, with Barr J agreeing, at [5] to [6]; SY & Anor [2003] NSWCCA 291, Howie J, with Ipp JA and Whealy J agreeing at [85] to [87]; Borkowski […
R v Palu [2002] NSWCCA 381
Citation 11 (Para 3)

…In addition, as was said by Howie J in R v Palu (2002) 134 A Crim R 174 at [37]: "The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen (unreported, CCA, NSW, No 60738…
R v MJK [2001] NSWCCA 325
Citation 12 (Para 9)

…There has been a significant delay between commission of the offences and sentencing. In MJR (2002) 54 NSWLR 368 it was held that where, by reason of delay, an offender is exposed to a harsher punishment and sentencing regime than that which existed at the time of the offence, and if an authentic and credible body of…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 13 (Para 26)

…ncing Act the discount for the utility of the pleas would need to be considered with regard to the principles referred to in Thomson & Houlton [2000] 49 NSWLR 383 and subsequent cases including, but not limited to Dib [2003] NSWCCA 117 Hodgson JA, with Barr J agreeing, at [5] to [6]; SY & Anor [2003] NSWCCA 291…
R v S [2000] NSWCCA 13
Citation 14 (Para 6)

…nd the total term. It should not be taken into account again in a finding of special circumstances because it is in effect double counting: see R v S [2000] NSWCCA 13 at [33].…
AB v The Queen [1999] HCA 46
Citation 15 (Para 11)

…bused as a child has some relevance in mitigation but the weight to be given to this circumstance will depend on the facts of the individual case: AB (1999) 198 CLR 111; Totten [2003] NSWCCA 207. On the facts asserted by the offender, it seems that he engaged in a mutually exploratory homosexual act with an older but…

Legislation Cited

Crimes Act 1900 (ACT) 61E, 61E(2), 79, 81
5 mentions (from Para 1)
Criminal Case Conferencing Trial Act 2008 (NSW) 6
2 mentions (from Para 2)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)

Case Title:	R v Fox
Medium Neutral Citation:	[2011] NSWDC 250
Hearing Date(s):	24/4/11, 12/8/11, 14/10/11
Decision Date:	24 November 2011
Before:	KING SC DCJ
Decision:	The overall effective accumulated non-parole period is four and a half years from 29 April 2011 and the balance of term is four and a half years, that is, the overall total accumulated sentence is nine years, that is, the accumulated non-parole period is 50% of the overall term. I recommend that when released on parole the offender be subject to supervision by the Probation and Parole Service in particular with respect to sexual offending, counselling and/or treatment.
Catchwords:	CRIMINAL - Sentence - Forms 1 - Buggery - Indecent assault - incite act of indecency - victims male and under 16 - paedophile grooming - consent - Victim Impact Statements
Legislation Cited:	Crimes Act 1900 ss 79, 81, 61E (1), 61E(2) Crimes (SP) Act 1999 ss 3A, 5, 21A(2), 32 Criminal Case Conferencing Trial Act 2008 s 6 (1) & (5) & (12)
Cases Cited:	AB v The Queen (1999) 198 CLR 111 Clinton v The Queen [2009] NSWCCA 276 Featherstone v The Queen [2008] NSWCCA 71 R v Borkowski [2009] NSWCCA 102 R v Dib [2003] NSWCCA 117 R v JCW (2000) 112 A Crim R 466 R v MJR (2002) 54 NSWLR 368 R v Moon (2000) 117 A Crim R 497 R v Palu (2002) 134 A Crim R 174 R v S [2000] NSWCCA 13 R v Shore (1992) 66 A Crim R 37 R v SY & Anor [2003] NSWCCA 291 R v Thomson; R v Houlton [2000] 49 NSWLR 383 R v Totten [2003] NSWCCA 207
Category:	Sentence
Parties:	Regina Fox, Mitchell Bruce
Representation
- Counsel:	Crown: Ms K Shead Defence: Mr J Glissan QC Mr W. J. Wilcher
File Number(s):	2010/155562 2010/155570 2010/155573
Publication Restriction:	NON-PUBLICATION ORDER RE NAMES OF VICTIMS AND EVIDENCE IDENTIFYING VICTIMS