R v FRP

Case [2023] NSWDC 449 20 October 2023

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v FRP [2023] NSWDC 449
Hearing dates: 6 October 2023
Date of orders: 20 October 2023
Decision date: 20 October 2023
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1)   The offender, having pleaded guilty is convicted of the offences.
(2)   I impose a total aggregate sentence of imprisonment of 13 years to date from 16 December 2021 and to expire on 15 December 2034.
(3)   I impose a non-parole period of 8 years 8 months to date from 16 December 2021 and expiring on 15 August 2030.
(4)   The earliest date the offender is eligible to be released on parole is 15 August 2030.

Catchwords:
CRIME – sentencing – guilty plea – child sexual offences – two female victims – offences occurring 20 years apart – offender the uncle of one victim – offender the grandfather of one victim – no prior criminal history – victim impact statements – position of trust – principle of totality – partial accumulation - aggregate sentence

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 21A(2)(eb), 21A(2)(k), 25AA, 21B, 25(2)(a), 25D(2)(a), 53A
Crimes Act 1900, ss 61M(1), 61M(2), 66A, 66C(1), 66C(2), 66DB(a)

Cases Cited:
Bhatia v R [2023] NSWCCA 12
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
EG v R [2015] NSWCCA 21
Hall v R [2021] NSWCCA 220
LN v R [2020] NSWCCA 131
R v Gavel (2014) 2398 Crim Reports 469; [2014] NSWCCA 56
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v PGM [2008] NSWCCA 172
Richards v R [2023] NSWCCA 107
TO v R [2017] NSWCCA 12

Category: Sentence
Parties: Rex (Crown)
FRP (Offender)
Representation:
Counsel:
Mr B Hart (Offender)
Solicitors:
Department of Public Prosecution (DPP) (Crown)
CAW Legal (Offender)

File Number(s): 2022/00357564 and 2023/00032136
Publication restriction: There is to be no publication of a name that identifies or is likely to lead to the identification of the victims.

Judgment

The offender is to be sentenced in respect to four offences committed against Victim 1 of aggravated sexual intercourse with a child over the age of 10 years and under the age of 14 years (domestic violence related) contrary to s 66C(2) of the Crimes Act 1900. The maximum penalty for each offence is 20 years imprisonment with a standard non-parole period of 9 years. The maximum penalty and standard non-parole period are an indication of their seriousness and acts as a sentencing guidepost or reference point. Attached to these Sequences on a Form 1 are two offences of intentionally sexually touch child over the age of 10 years and under the age of 16 years (domestic violence related) contrary to s 66DB(a) of the Crimes Act 1900.
Further, the offender is to be sentenced in respect to the following three offences committed against the victim Victim 2: –

Indecent assault victim under the age of 10 years (domestic violence related) contrary…

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 FRP

Details

AGLC: R v FRP [2023] NSWDC 449
Case: [2023] NSWDC 449
Decision Date: 20 October 2023

CaseChat Overview and Summary

The appellant, a man with no prior criminal history, was convicted of two serious sexual offences against children. The offences occurred over a span of two decades, with the first involving his niece and the second his granddaughter. The case was heard in the Supreme Court, where the primary legal issues revolved around the appropriate sentencing for these heinous crimes. The court had to consider the severity and impact of the offences, the positions of trust held by the offender, and the principle of totality, which mandates that the cumulative sentence for multiple offences should not be disproportionate to the overall criminality.

The court acknowledged the profound impact on both victims, as evidenced by their victim impact statements. It also recognised the offender's familial relationship with the victims, which heightened the breach of trust. The court applied the principle of totality, ensuring that the aggregate sentence did not excessively punish the offender for the same criminal behaviour. After weighing these factors, the court decided on a total aggregate sentence of 13 years, with a non-parole period of 8 years and 8 months, to be served from 16 December 2021 until 15 December 2034. The earliest possible release on parole was set for 15 August 2030.

The court's decision balanced the need for punishment and deterrence with considerations of the offender's personal circumstances and the principle of proportionality. The aggregate sentence reflected the gravity of the crimes and the impact on the victims, while also adhering to legal principles concerning sentencing for multiple offences. The outcome of the case underscores the importance of these principles in ensuring justice and maintaining public confidence in the criminal justice system.

Orders

Orders of the court

(1) The offender, having pleaded guilty is convicted of the offences.

(2) I impose a total aggregate sentence of imprisonment of 13 years to date from 16 December 2021 and to expire on 15 December 2034.

(3) I impose a non-parole period of 8 years 8 months to date from 16 December 2021 and expiring on 15 August 2030.

(4) The earliest date the offender is eligible to be released on parole is 15 August 2030.

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

R v FRP [2023] NSWDC 449

Cases Citing This Decision

No citing cases yet.

Cases Cited

Richards v R [2023] NSWCCA 107
Citation 1 (Para 57)

…it was contended that the Court could not sentence on the basis that the offending conduct had continued or alternatively it had ceased: Richards v R [2023] NSWCCA 107 at [83] – [85].…
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Citation 2 (Para 72)

…on the Form 1 places the substantive offence in context: LN v R [2020] NSWCCA 131 at [54] per Basten JA; Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [24] per Beech-Jones CJ at CL. The offender then removed the victim’s school uniform and her underwear. The act constituting Sequence 1 involved the…
Bhatia v R [2023] NSWCCA 12
Citation 3 (Para 95)

…d character. This is not a case where the offender’s lack of prior convictions and good character assisted him to commit the offences: Bhatia v R [2023] NSWCCA 12.…
Hall v R [2021] NSWCCA 220
Citation 4 (Para 108)

…ce, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] – [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). In circumstances where the offending involved two victims, and a 20-year…
LN v R [2020] NSWCCA 131
Citation 5 (Para 72)

…rea (Sequence 2 on the Form 1). In assessing the objective seriousness, the offence on the Form 1 places the substantive offence in context: LN v R [2020] NSWCCA 131 at [54] per Basten JA; Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [24] per Beech-Jones CJ at CL. The offender then removed the vict…
TO v R [2017] NSWCCA 12
Citation 6 (Para 58)

…sentencing courts in respect of such offences are to give primacy to general deterrence. The Crown referred to the observations of Fagan J in TO v R [2017] NSWCCA 12 where it was said that the Courts have recognised significant variation in the degree of objective seriousness which may be exhibited from one instan…
EG v R [2015] NSWCCA 21
Citation 7 (Para 91)

…deterrence and denunciation have a significant role to play in respect to sexual abuse perpetrated on children. As Hoeben CJ at CL observed in EG v R [2015] NSWCCA 21 at [42] (with whom Harrison J and RA Hulme J agreed):…
R v Gavel [2014] NSWCCA 56
Citation 8 (Para 87)

…The courts have consistently recognised the harm inflicted on children that are victims of sexual abuse. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 the Court observed at [110]:…
R v CMB [2014] NSWCCA 5
Citation 9 (Para 92)

…“… that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baro…
SW v R [2013] NSWCCA 255
Citation 10 (Para 52)

…not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psyc…
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Citation 11 (Para 23)

…substantive offences on the indictment ( Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [23] (Bathurst CJ); see also [64] (Basten JA), [104] (Hoeben CJ at CL) and [154] (Garling J); “Abbas” and Attorney General's Application Under s 37 of t…
Clarkson v The Queen [2011] VSCA 157
Citation 12

…th a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].”…
R v PGM [2008] NSWCCA 172
Citation 13 (Para 72)

…forms of sexual activity may be considered more serious than others, whilst taking into account the context in which the offending occurred: R v PGM [2008] NSWCCA 172 at [26]; TO v R [2017] NSWCCA 12 at [244].…
R v G [2008] UKHL 37
Citation 14 (Para 52)

…B [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual…
R v MAK [2006] NSWCCA 381
Citation 15 (Para 108)

…of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK ; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] – [17] per Spigelman CJ, Whealy J and Howie JJ).…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 16 (Para 4)

…ciples enunciated by the Court of Criminal Appeal in The Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No.1 (2002) 56 NSWLR 146. Spigelman CJ observed at [39]:…
[2009] 1 AC 92 [2009] 1 AC 92
Citation 17 (Para 52)

…5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 21A, 21A(2)(eb), 21A(2)(k), 21B, 25(2)(a...
10 mentions (from Para 4)
Crimes Act 1900 (ACT) 61M(1), 61M(2), 66A, 66C(1), 66C(2), 66D...
7 mentions (from Para 1)

Medium Neutral Citation:	R v FRP [2023] NSWDC 449
Hearing dates:	6 October 2023
Date of orders:	20 October 2023
Decision date:	20 October 2023
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) The offender, having pleaded guilty is convicted of the offences. (2) I impose a total aggregate sentence of imprisonment of 13 years to date from 16 December 2021 and to expire on 15 December 2034. (3) I impose a non-parole period of 8 years 8 months to date from 16 December 2021 and expiring on 15 August 2030. (4) The earliest date the offender is eligible to be released on parole is 15 August 2030.
Catchwords:	CRIME – sentencing – guilty plea – child sexual offences – two female victims – offences occurring 20 years apart – offender the uncle of one victim – offender the grandfather of one victim – no prior criminal history – victim impact statements – position of trust – principle of totality – partial accumulation - aggregate sentence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 21A(2)(eb), 21A(2)(k), 25AA, 21B, 25(2)(a), 25D(2)(a), 53A Crimes Act 1900, ss 61M(1), 61M(2), 66A, 66C(1), 66C(2), 66DB(a)
Cases Cited:	Bhatia v R [2023] NSWCCA 12 Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 EG v R [2015] NSWCCA 21 Hall v R [2021] NSWCCA 220 LN v R [2020] NSWCCA 131 R v Gavel (2014) 2398 Crim Reports 469; [2014] NSWCCA 56 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v PGM [2008] NSWCCA 172 Richards v R [2023] NSWCCA 107 TO v R [2017] NSWCCA 12
Category:	Sentence
Parties:	Rex (Crown) FRP (Offender)
Representation:	Counsel: Mr B Hart (Offender) Solicitors: Department of Public Prosecution (DPP) (Crown) CAW Legal (Offender)
File Number(s):	2022/00357564 and 2023/00032136
Publication restriction:	There is to be no publication of a name that identifies or is likely to lead to the identification of the victims.