R v G

Case [2021] NSWDC 78 26 February 2021

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District Court

New South Wales

Medium Neutral Citation: R v G [2021] NSWDC 78
Hearing dates: 3 December 2020, 12 and 26 February 2021
Date of orders: 26 February 2010
Decision date: 26 February 2021
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
See [172] onwards

Catchwords:
CRIMINAL LAW –– Child sex offences – aggravated indecent assault – sexual touching of a child – use of child for the production of child abuse material – maintaining an unlawful sexual relationship with a child and where a child was conceived. Offending involved four victims overall.
CRIMINAL LAW –– Where the Offender used carriage service to publish child abuse material.
SENTENCE –– s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to State offences – aggravating factors – offences committed in position of trust and vulnerability of victims considered – mitigating factors – discount for early guilty pleas and assistance to law enforcement authorities in some circumstances substantial – extent of assistance discounts to be applied – where offending preceded 2018 amendments – whether the Offender to be sentenced on s 66EA of the Crimes Act 1900 (NSW) as it now stands or prior to the 2018 amendments.
SENTENCE –– previous record of convictions relating to disseminating or possess child pornography, using a carriage service to access child pornography and using a carriage service to make child pornography – elevated risk of reoffending – remorse and contrition established.
SENTENCE –– finding of special circumstances by reason of partial accumulation of Commonwealth and State aggregate sentences.

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M, 66DA, 66EA, 91G, 91H
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, 21A, 23, 25AA, 28, 30E, 33, 44
Crimes Act 1914 (Cth), s 16A, 19AC, 20
Criminal Code Act 1995 (Cth), s 474.19

Cases Cited:
Burr v R [2020] NSWCCA 282
Eacott (a pseudonym) v R [2019] NSWCCA 158
R v BJW (2000) 112 A Crim R 1
Shannon v R [2006] NSWCCA 39
R v Gavel (2014) 239 A Crim R 469
R v Nelson (2016) NSWCCA 130
R v PWH (unrep, 20/2/1992, NSWCCA)
R v T (1990) 47 A Crim R 29
R v Catell [2019] NSWCCA 297
R v PGM [2008] NSWCCA 172
R v JDB (2005) 153 A Crim R 164
R v Boulad [2005] NSWCCA 289
ARS v R [2011] NSWCCA 266
R v Hutchinson [2018] NSWCCA 152
Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
R v Leeuw [2015] NSWCCA 183
R v Freedman [2017] NSWCCA 201
R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCA 309
Buckely v R [2021] NSWCCA 6 at [82]
Panetta v R [2016] NSWCCA 85
Veen v R [No 2] (1998) 164 CLR 465.
Attorney General’s Application under s 37 of the Crime (Sentencing Procedure) Act 1999 No1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518.

Category: Sentence
Parties: Regina (the Crown)
G (the Offender)
Representation:
Counsel:
Mr B N Queenan (the Crown)
Mr B…

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 G

Details

AGLC: R v G [2021] NSWDC 78
Case: [2021] NSWDC 78
Decision Date: 26 February 2021

CaseChat Overview and Summary

The case of R v G involved the defendant, who had engaged in multiple serious criminal offences, including aggravated indecent assault, sexual touching of a child, using a child for the production of child abuse material, and maintaining an unlawful sexual relationship with a child. The defendant's actions affected four victims overall. The offender also used a carriage service to publish child abuse material. The matter was heard in the Supreme Court of New South Wales.

The court had to address several legal issues, including the application of s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) to state offences, the consideration of aggravating factors such as the offences being committed in a position of trust and the vulnerability of the victims, and mitigating factors such as early guilty pleas and assistance to law enforcement authorities. The court needed to determine the extent to which discounts for early guilty pleas and assistance should be applied, particularly given that the offending occurred before the 2018 amendments. Additionally, the court had to decide whether to sentence the offender under s 66EA of the Crimes Act 1900 (NSW) as it now stands or prior to the 2018 amendments. The court also considered the defendant's previous record of convictions, the elevated risk of reoffending, and the offender's remorse and contrition. Finally, the court had to determine if special circumstances existed by reason of partial accumulation of Commonwealth and state aggregate sentences.

The court applied s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW), considering the aggravating and mitigating factors. The court recognised the significant aggravating factors, including the defendant's position of trust and the vulnerability of the victims. However, it also took into account mitigating factors such as the defendant's early guilty pleas and assistance to law enforcement authorities. The court assessed the extent of the discounts for early guilty pleas and assistance, noting that the offending predated the 2018 amendments. The court decided to sentence the offender under the current version of s 66EA of the Crimes Act 1900 (NSW). The court acknowledged the defendant's previous convictions, the elevated risk of reoffending, and the remorse and contrition demonstrated. The court found special circumstances by reason of partial accumulation of Commonwealth and state aggregate sentences. The final orders of the court are detailed from paragraph [172] onwards.

Orders

Orders of the court

See [172] onwards

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 G [2021] NSWDC 78

Cases Citing This Decision

No citing cases yet.

Cases Cited

Buckley v R [2021] NSWCCA 6
Citation 1 (Para 134)

…ent of s 23(3) of the 1999 Act , is such that it would not generally be met by allowing a combined discount of greater than 50%. [48] 48. Buckely v R [2021] NSWCCA 6 at [85].…
Saad v Volvo Finance Australia Pty Ltd [2020] NSWCA 282
Citation 2

…upon an assessment of the objective seriousness of a s.66EA offence depending upon the circumstances of the particular case.” 28. [2020] NSWCA 282 per Johnson J (with whom Leeming JA and Rothman J agreed ) at [106]-107].…
Burr v R [2020] NSWCCA 282
Citation 3 (Para 113)

…nciples as expressed in Burr v R [26] remain relevant to the objective seriousness for the criminality of the current offence. [27] 25. T 9.8-13. 26. [2020] NSWCCA 282. 27. Crown amended submissions at p5-6 and Defence written submissions at [3]-[6].…
R v Cattell [2019] NSWCCA 297
Citation 4 (Para 87)

…time of the offence. That includes taking into account the aggravating and mitigating factors in s 21A(2) and (3) of the 1999 Act . [6] 6. R v Catell [2019] NSWCCA 297 at [103]-[111].…
Eacott (a pseudonym) v R [2019] NSWCCA 158
Citation 5

…Criminal Code Act 1995 (Cth), s 474.19 Cases Cited: Burr v R [2020] NSWCCA 282 Eacott (a pseudonym) v R [2019] NSWCCA 158 R v BJW (2000) 112 A Crim R 1 Shannon v R [2006] NSWCCA 39 R v Gavel (2014) 239 A Crim R 469 R v Nelson (2016) NSWCCA 130 R v PWH (unrep, 20/2/1992, NSWCCA) R v T (1990) 47 A Crim R 29 R v Catell…
R v Hutchinson [2018] NSWCCA 152
Citation 6 (Para 119)

…e seriousness of these sequences, I bear in mind the list of potentially relevant matters referred to in R v Hutchinson [35] and R v Leeuw . [36] 35. [2018] NSWCCA 152 at [45]-[46] referred to Minehan v R [2010] NSWCCA 140; 201 A Crim R 243. 36. [2015] NSWCCA 183 at [70]-[72]. This passage is referred to in R v Free…
R v Freedman [2017] NSWCCA 201
Citation 7 (Para 119)

…45]-[46] referred to Minehan v R [2010] NSWCCA 140; 201 A Crim R 243. 36. [2015] NSWCCA 183 at [70]-[72]. This passage is referred to in R v Freedman [2017] NSWCCA 201 at [77].…
Ak v R [2016] NSWCCA 238
Citation 8 (Para 177)

…us temporal relationship between the head sentence and standard non-parole period and the need to apply proper consideration to each. [63] 63. AK v R [2016] NSWCCA 238; Corby v R [2010] NSWCCA 146.…
Panetta v R [2016] NSWCCA 85
Citation 9 (Para 135)

…ce that his assistance led him to be assaulted in custody and subsequently placed in segregation. A combined 50% discount was ultimately allowed. 49. [2016] NSWCCA 85. 50. [2021] NSWCCA 6.…
R v De Leeuw [2015] NSWCCA 183
Citation 10 (Para 119)

…ed to in R v Hutchinson [35] and R v Leeuw . [36] 35. [2018] NSWCCA 152 at [45]-[46] referred to Minehan v R [2010] NSWCCA 140; 201 A Crim R 243. 36. [2015] NSWCCA 183 at [70]-[72]. This passage is referred to in R v Freedman [2017] NSWCCA 201 at [77].…
ARS v R [2011] NSWCCA 266
Citation 11 (Para 116)

…hat creates them. [31] The Offender was born in 1968 and there was an 18 year age difference with D. 30. Crown amended submissions at p6. 31. ARS v R [2011] NSWCCA 266.…
Corby v R [2010] NSWCCA 146
Citation 12 (Para 177)

…een the head sentence and standard non-parole period and the need to apply proper consideration to each. [63] 63. AK v R [2016] NSWCCA 238; Corby v R [2010] NSWCCA 146.…
Minehan v R [2010] NSWCCA 140
Citation 13 (Para 119)

…st of potentially relevant matters referred to in R v Hutchinson [35] and R v Leeuw . [36] 35. [2018] NSWCCA 152 at [45]-[46] referred to Minehan v R [2010] NSWCCA 140; 201 A Crim R 243. 36. [2015] NSWCCA 183 at [70]-[72]. This passage is referred to in R v Freedman [2017] NSWCCA 201 at [77].…
R v PGM [2008] NSWCCA 172
Citation 14

…130 R v PWH (unrep, 20/2/1992, NSWCCA) R v T (1990) 47 A Crim R 29 R v Catell [2019] NSWCCA 297 R v PGM [2008] NSWCCA 172 R v JDB (2005) 153 A Crim R 164 R v Boulad [2005] NSWCCA 289 ARS v R [2011] NSWCCA 266 R v Hutchinson [2018] NSWCCA 152 Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 R v Leeuw [2015] NSWCCA 183…
Shannon v R [2006] NSWCCA 39
Citation 15 (Para 91)

…tor established for sequence 17. 8. R v T (1990) 47 A Crim R 29 at 30; R v PWH (unrep, 20/2/1992, NSWCCA); R v BJW (2000) 112 A Crim R 1; Shannon v R [2006] NSWCCA 39.…
R v Boulad [2005] NSWCCA 289
Citation 16 (Para 97)

…le counting by engaging the aggravating factor of vulnerability in s 21A(2)(l) of the 1999 Act . [14] 14. R v JDB (2005) 153 A Crim R 164; R v Boulad [2005] NSWCCA 289 at [21].…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 17 (Para 174)

…f the Crime (Sentencing Procedure) Act 1999 No1 of 2002 [62] giving greater weight to personal deterrence and retribution. 62. (2002) 56 NSWLR 146; [2002] NSWCCA 518.…
Freightcorp v Duncan [2000] NSWCA 309
Citation 18 (Para 134)

…led to a 25% discount in respect of the State offences. [41] 41. S 21A(3)(k) and 22 of the 1999 Act. See R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCA 309.…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 19 (Para 134)

…the Offender is entitled to a 25% discount in respect of the State offences. [41] 41. S 21A(3)(k) and 22 of the 1999 Act. See R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCA 309.…
Veen v The Queen (No 2) [1988] HCA 14
Citation 20 (Para 157)

…d not submit that these were aggravating matters to be taken into account on sentence under s 21A(2)(d) of the 1999 Act or Veen v R [No 2] . [55] 55. (1998) 164 CLR 465.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 21A, 23, 25AA, 28, 30E, 33, 3A, 44
9 mentions (from Para 86)
Crimes Act 1900 (ACT) 61M, 66DA, 66EA, 91G, 91H
6 mentions (from Para 2)
Crimes Act 1914 (Cth) 16A, 19AC, 20
4 mentions (from Para 124)
Crime (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 174)
Criminal Code Act 1995 (Cth)
1 mention (from Para 1)

Medium Neutral Citation:	R v G [2021] NSWDC 78
Hearing dates:	3 December 2020, 12 and 26 February 2021
Date of orders:	26 February 2010
Decision date:	26 February 2021
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	See [172] onwards
Catchwords:	CRIMINAL LAW –– Child sex offences – aggravated indecent assault – sexual touching of a child – use of child for the production of child abuse material – maintaining an unlawful sexual relationship with a child and where a child was conceived. Offending involved four victims overall. CRIMINAL LAW –– Where the Offender used carriage service to publish child abuse material. SENTENCE –– s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to State offences – aggravating factors – offences committed in position of trust and vulnerability of victims considered – mitigating factors – discount for early guilty pleas and assistance to law enforcement authorities in some circumstances substantial – extent of assistance discounts to be applied – where offending preceded 2018 amendments – whether the Offender to be sentenced on s 66EA of the Crimes Act 1900 (NSW) as it now stands or prior to the 2018 amendments. SENTENCE –– previous record of convictions relating to disseminating or possess child pornography, using a carriage service to access child pornography and using a carriage service to make child pornography – elevated risk of reoffending – remorse and contrition established. SENTENCE –– finding of special circumstances by reason of partial accumulation of Commonwealth and State aggregate sentences.
Legislation Cited:	Crimes Act 1900 (NSW), ss 61M, 66DA, 66EA, 91G, 91H Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, 21A, 23, 25AA, 28, 30E, 33, 44 Crimes Act 1914 (Cth), s 16A, 19AC, 20 Criminal Code Act 1995 (Cth), s 474.19
Cases Cited:	Burr v R [2020] NSWCCA 282 Eacott (a pseudonym) v R [2019] NSWCCA 158 R v BJW (2000) 112 A Crim R 1 Shannon v R [2006] NSWCCA 39 R v Gavel (2014) 239 A Crim R 469 R v Nelson (2016) NSWCCA 130 R v PWH (unrep, 20/2/1992, NSWCCA) R v T (1990) 47 A Crim R 29 R v Catell [2019] NSWCCA 297 R v PGM [2008] NSWCCA 172 R v JDB (2005) 153 A Crim R 164 R v Boulad [2005] NSWCCA 289 ARS v R [2011] NSWCCA 266 R v Hutchinson [2018] NSWCCA 152 Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 R v Leeuw [2015] NSWCCA 183 R v Freedman [2017] NSWCCA 201 R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCA 309 Buckely v R [2021] NSWCCA 6 at [82] Panetta v R [2016] NSWCCA 85 Veen v R [No 2] (1998) 164 CLR 465. Attorney General’s Application under s 37 of the Crime (Sentencing Procedure) Act 1999 No1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518.
Category:	Sentence
Parties:	Regina (the Crown) G (the Offender)
Representation:	Counsel: Mr B N Queenan (the Crown) Mr B…