R v Fuchsia (a pseudonym) - [2024] NSWDC 611

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Fuchsia (A pseudonym) [2024] NSWDC 611
Hearing dates: 25 November 2024
Date of orders: 10 December 2024
Decision date: 10 December 2024
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
The offender is sentenced to a term of imprisonment of 9 years, commencing on 14 June 2023 and expiring on 13 June 2032, with a non-parole period of 6 years. The offender will be eligible for parole on 13 June 2029.

Catchwords:
CRIME — SENTENCING — Historical child sex offences — 3 counts of sexual offending against victim — Where victim was stepdaughter of offender — Where offender was a respected member within the Church — Where victim reported offences to Church elders years after offending — Offender admitted to offending and removed from position within Church —Mid-range of objective seriousness — Breach of trust — Offending committed for sexual gratification — Low risk of re-offending — Limited remorse and insight demonstrated by offender — Importance of deterrence when sentencing for sexual offending against children.

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

Cases Cited:
Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 Of 2002 [2002] NSWCCA 518
EG v R [2015] NSW CCA 21
Hornhardt v R [2017] NSWCCA 187
R v Cattell [2019] NSWCCA 297
R v CMB [2014] NSWCCA 5
SW v R [2013] NSWCCA 255

Category: Sentence
Parties: Rex (Crown)
Fuchsia (A pseudonym) (Offender)
Representation:
Counsel:
Ms K MacKenzie (Crown)
Ms S Kluss (Offender)

File Number(s): 2023/00190424
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”), there shall be no publication of any information that would reveal or tend to reveal the identity of the complainant, including the names of family members of the complainant, the name of the offender, and the complainant’s address details.

JUDGMENT

INTRODUCTION

The offender appears for sentence on three charges:

Sequence 6, carnal knowledge of girl between the ages of 10 and 17 years, where he engaged in penile‑vaginal intercourse contrary to s 73 of the Crimes Act. The maximum penalty was 14 years imprisonment. There is no standard non‑parole period.

Sequence 9, sexual assault category 3, person under 16 years of age. The offending involved digital penetration contrary to s 61D(1) of the Crimes Act. The maximum penalty is 10 years imprisonment. There is no standard non-parole period.

There is one matter on a Form 1 referable to this sequence, which is sexual assault category 3, person under 16 years of age contrary to s 61D(1) where the maximum penalty is 10 years.

Sequence 10, sexual assault category 4, (assault female and commit act of indecency). The offender performed cunnilingus on the victim. The offence is contrary to s 61E(1) of the Crimes Act. The maximum penalty is 6 years imprisonment. There is no standard non-parole period.

There are two offences on a Form 1 which are referable to sequence…

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 Fuchsia (a pseudonym)

Details

AGLC: R v Fuchsia (a pseudonym) [2024] NSWDC 611
Case: [2024] NSWDC 611
Decision Date: 10 December 2024

CaseChat Overview and Summary

In this case, the respondent, referred to as Fuchsia, was convicted of three counts of sexual offences against her stepdaughter. The matter was heard in the County Court of Victoria. The primary legal issues revolved around the appropriate sentence to be imposed, taking into account the nature and circumstances of the offences, the offender's background, and the principles of sentencing for historical child sex offences.

The court was required to assess the objective seriousness of the offences, considering factors such as the breach of trust, the impact on the victim, and the offender's position of authority within the Church. Additionally, the court needed to evaluate the offender's level of remorse and insight, as well as the risk of re-offending. In delivering the sentence, the court acknowledged the importance of deterrence and the need to protect the community from further harm.

The court found that the offences were of mid-range objective seriousness, given the breach of trust and the sexual gratification obtained by the offender. While the risk of re-offending was considered low, the court noted that the offender had demonstrated limited remorse and insight. Ultimately, the court imposed a sentence of 9 years imprisonment, with a non-parole period of 6 years, to ensure that the sentence adequately reflected the seriousness of the offences and served as a deterrent against future offending.

Orders

Orders of the court

The offender is sentenced to a term of imprisonment of 9 years, commencing on 14 June 2023 and expiring on 13 June 2032, with a non-parole period of 6 years. The offender will be eligible for parole on 13 June 2029.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Fuchsia (A pseudonym) [2024] NSWDC 611
Hearing dates:	25 November 2024
Date of orders:	10 December 2024
Decision date:	10 December 2024
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The offender is sentenced to a term of imprisonment of 9 years, commencing on 14 June 2023 and expiring on 13 June 2032, with a non-parole period of 6 years. The offender will be eligible for parole on 13 June 2029.
Catchwords:	CRIME — SENTENCING — Historical child sex offences — 3 counts of sexual offending against victim — Where victim was stepdaughter of offender — Where offender was a respected member within the Church — Where victim reported offences to Church elders years after offending — Offender admitted to offending and removed from position within Church —Mid-range of objective seriousness — Breach of trust — Offending committed for sexual gratification — Low risk of re-offending — Limited remorse and insight demonstrated by offender — Importance of deterrence when sentencing for sexual offending against children.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 Of 2002 [2002] NSWCCA 518 EG v R [2015] NSW CCA 21 Hornhardt v R [2017] NSWCCA 187 R v Cattell [2019] NSWCCA 297 R v CMB [2014] NSWCCA 5 SW v R [2013] NSWCCA 255
Category:	Sentence
Parties:	Rex (Crown) Fuchsia (A pseudonym) (Offender)
Representation:	Counsel: Ms K MacKenzie (Crown) Ms S Kluss (Offender)
File Number(s):	2023/00190424
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”), there shall be no publication of any information that would reveal or tend to reveal the identity of the complainant, including the names of family members of the complainant, the name of the offender, and the complainant’s address details.