R v Gale

Case [2020] NSWDC 79 3 April 2020

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v GALE [2020] NSWDC 79
Hearing dates: 13 March 2020
Date of orders: 03 April 2020
Decision date: 03 April 2020
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced to an aggregate sentence of 1 year 8 months (imprisonment) with a non-parole period of 12 months.

Catchwords: CRIME – sexual offences - young person between 16 and 18 under special care
SENTENCING – aggravating factors – breach of trust
SENTENCING – extra curial punishment
Legislation Cited: Crimes Act, 1900
Crimes Act 1914 (Cth)
Crimes (Domestic & Personal Violence) Act, 2007
Crimes (Sentencing Procedure) Act, 1999
Cases Cited: The Attorney General’s Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002 (2002) 56 NSWLR 146
Merhi v R [2019] NSWCCA 322
Ryan v The Queen (2001) 206 CLR 267
Kennedy v R [2000] NSWCCA 527
R v KNL [2005] NSWWCCA 260
R v Daetz; R v Wilson [2003] NSWCCA 216
and Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222
FB v R; R v FB [2011] NSWCCA 217
Einfeld v R (2010) 200 A Crim R 1
Greenwood v R [2014] NSWCCA 64
Whybrow v R [2008] NSWCCA 270
Alameddine v R [2006] NSWCCA 317
Ridley v R [2008] NSWCCA 299
Brown v R [2014] NSWCCA 215
SS v The Queen [2016] NSWCCA 197
R v Blackman & Walters [2001] NSWCCA 121
EF v R [2015] NSWCCA 36
R v Tsokos unreported NSWCCA 16.6.1995
Category: Sentence
Parties: Director of Public Prosecution (for the Crown)
Brendan Gale (offender)
Representation:
Counsel:
Ms Alderton (for the offender)
Solicitors:
Ms Morgan (for the DPP)

File Number(s): 2019/2532
Publication restriction: No publication of the name of the victim or anything that would identify them.

REMARKS ON SENTENCE

The offender appeared at the Cootamundra Local Court on 4 November 2019 and entered a plea of guilty to two charges, namely:

That (he) between 1 February 2018 and 12 September 2018 at Cootamundra in the State of New South Wales did have sexual intercourse with CS, who was aged 17 years and being provided tuition by Brendan Royce GALE, contrary to s 73(2) of the Crimes Act, 1900; and further

That (he) between 1 February 2018 and 12 September 2018 at Cootamundra in the State of New South Wales did have sexual intercourse with CS, who was aged 17 years and being provided tuition by Brendan Royce GALE, contrary to s 73(2) of the Crimes Act, 1900.

The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 13 March 2020 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.
In addition to the substantive matters the offender asks that when passing sentence the court take into account a further charge contrary to s 73(2) of the Crimes…

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 Gale

Details

AGLC: R v Gale [2020] NSWDC 79
Case: [2020] NSWDC 79
Decision Date: 03 April 2020

CaseChat Overview and Summary

In the matter of Regina versus Gale, the defendant was convicted of various sexual offences involving a young person aged between 16 and 18, who fell under the special care provisions. The case was heard and determined by the court, which had to consider the appropriate sentence in light of the aggravating factors and the defendant’s breach of trust. The central issue before the court was to determine an appropriate sentence, taking into account the aggravating factors and the impact of the offence on the victim, as well as the defendant's background and circumstances.

The court recognised that the offences involved a breach of trust and highlighted the gravity of the offences, given the age and vulnerability of the victim. The court also considered the defendant's previous good character and the impact of extra-curial punishment on him. The court emphasised the importance of deterrence and rehabilitation, while also ensuring that the sentence was proportionate to the crimes committed. The court concluded that the offences warranted a custodial sentence, but also noted the potential for rehabilitation and the importance of considering the defendant's age and background.

Taking all factors into account, the court sentenced the defendant to an aggregate term of 1 year and 8 months imprisonment, with a non-parole period of 12 months. The court found that this sentence balanced the need for punishment, deterrence, and the potential for rehabilitation, while also considering the specific circumstances of the case and the impact on the victim. The court's decision was aimed at ensuring that the defendant understood the seriousness of the offences, while also providing an opportunity for rehabilitation and reintegration into society.

Orders

Orders of the court

Sentenced to an aggregate sentence of 1 year 8 months (imprisonment) with a non-parole period of 12 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Gale [2020] NSWDC 79

Most Recent Citation

Gale v The Queen [2021] NSWCCA 16

Cases citing this decision · 1 of 1 shown

Gale v The Queen
[2021] NSWCCA 16

…Solicitor for Public Prosecutions File Number(s): 2019/2532 Decision under appeal Court or tribunal: District Court Citation: [2020] NSWDC 79 Date of Decision: 3 April 2020 Before: Lerve DCJ File Number(s): 2019/2532…

View all 1 citing cases →

Cases cited in this decision · 28 of 28 shown

Merhi v R
[2019] NSWCCA 322 Para 29

…The Crown refers the court to the decision of Merhi v R [2019] NSWCCA 322 at [43]-[57]. The Crown’s position is that while the prior good character of the offender is a relevant consideration it does not achieve or carry the same weight that it might in other circumstances.…
Parente v R
[2017] NSWCCA 285 Para 65

…hment”. The footnote refers to the decisions of R v KNL [2005] NSWWCCA 260, R v Daetz; R v Wilson [2003] NSWCCA 216 at [61][62] and Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [32].…
Parente v R
[2017] NSWCCA 284 Para 65

…refers to the decisions of R v KNL [2005] NSWWCCA 260, R v Daetz; R v Wilson [2003] NSWCCA 216 at [61][62] and Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [32].…
Kearsley v R
[2017] NSWCCA 28 Para 149

…R [2010] NSWCCA 6 at [47]-[49]; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [95]-[97]; Michael v R [2014] NSWCCA 2 at [149]-[154]; Kearsley v R [2017] NSWCCA 28 at [13] (Macfarlan JA) and [76]-[80] (Harrison J).”…
SS v R
[2016] NSWCCA 197 Para 86

…rmably with such decisions as Brown v R [2014] NSWCCA 215 especially at [80]-[81] per Garling J and the observations of Bathurst CJ in SS v The Queen [2016] NSWCCA 197 at [62]-[73].…
EF v R
[2015] NSWCCA 36 Para 98

…f intensive correction order. If the situation was different then I would be obliged to consider whether that was appropriate – see for e.g. EF v R [2015] NSWCCA 36 at [42] per Schmidt J. Where a particular sentencing option is not available the sentencing court does not automatically proceed to a lower or less ser…
Brown v R
[2014] NSWCCA 215 Para 86

…statistics and the various matters referred to by counsel but I warn myself about the use of statistics conformably with such decisions as Brown v R [2014] NSWCCA 215 especially at [80]-[81] per Garling J and the observations of Bathurst CJ in SS v The Queen [2016] NSWCCA 197 at [62]-[73].…
Greenwood v R
[2014] NSWCCA 64 Para 79

…The Crown Prosecutor in brief written submissions refers the court to the decisions of Einfeld v R (2010) 200 A Crim R 1 and Greenwood v R [2014] NSWCCA 64 at [35]-[36]. Hoeben CJ at CL (Bathurst CJ, Adams J agreeing) in Greenwood said at [35]-[36]:…
Michael v R
[2014] NSWCCA 2 Para 95

…v R [2006] NSWCCA 275 at [19]-[20]; Kenny v R [2010] NSWCCA 6 at [47]-[49]; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [95]-[97]; Michael v R [2014] NSWCCA 2 at [149]-[154]; Kearsley v R [2017] NSWCCA 28 at [13] (Macfarlan JA) and [76]-[80] (Harrison J).”…
R v Zerafa
[2013] NSWCCA 222 Para 73

…-Jones J agreeing with additional comments, relating particularly to s 16A(2)(p) of the Crimes Act 1914 (Cth)) in R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 said at [92]:…
FB v R
[2011] NSWCCA 217 Para 74

…Then there is the decision of FB v R; R v FB [2011] NSWCCA 217. In that matter there was an unsuccessful conviction appeal by the offender but a successful Crown appeal on sentence. The judgment relating to the Crown appeal on sentence commences at [128] of the judgment. The facts related to a conviction for an offe…
Einfeld v R
[2010] NSWCCA 87 Para 47

…in the assessment of sentence: see, for example, Oudomvilay v R [2006] NSWCCA 275 at [19]-[20]; Kenny v R [2010] NSWCCA 6 at [47]-[49]; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [95]-[97]; Michael v R [2014] NSWCCA 2 at [149]-[154]; Kearsley v R [2017] NSWCCA 28 at [13] (Macfarlan JA) and [76]-[80] (Harrison…
Kenny v R
[2010] NSWCCA 6 Para 19

…relevant matter to be taken into account in the assessment of sentence: see, for example, Oudomvilay v R [2006] NSWCCA 275 at [19]-[20]; Kenny v R [2010] NSWCCA 6 at [47]-[49]; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [95]-[97]; Michael v R [2014] NSWCCA 2 at [149]-[154]; Kearsley v R [2017] NSWCCA 28 at […
Whybrow v R
[2008] NSWCCA 270 Para 81

…In dealing with the issue of extra curial punishment I have also re-read and considered the authorities of Whybrow v R [2008] NSWCCA 270, especially at [21]-[25] per Hislop J where his Honour comprehensively reviews a number of authorities and Alameddine v R [2006] NSWCCA 317.…
Ridley v The Queen
[2008] NSWCCA 299 Para 83

…The submissions include a reference to the decision where the sentencing disposition was s 9 bond, i.e. Ridley v R [2008] NSWCCA 299. The offending in that matter is different in that there was only one count. Blanch J (Bell JA (as her Honour then was), Hall J agreeing) set out the facts of the case at [3]-[4]. The…
Alameddine v R
[2006] NSWCCA 317 Para 81

…ybrow v R [2008] NSWCCA 270, especially at [21]-[25] per Hislop J where his Honour comprehensively reviews a number of authorities and Alameddine v R [2006] NSWCCA 317.…
Oudomvilay v R
[2006] NSWCCA 275 Para 19

…ising career in the legal profession was a relevant matter to be taken into account in the assessment of sentence: see, for example, Oudomvilay v R [2006] NSWCCA 275 at [19]-[20]; Kenny v R [2010] NSWCCA 6 at [47]-[49]; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [95]-[97]; Michael v R [2014] NSWCCA 2 at [149]-[…
R v Mostyn
[2004] NSWCCA 97

…hip out of the ordinary ( R v Totten [2003] NSWCCA 207; 10 Crim LN 61 (1582); R v Durocher-Yvon [2003] NSWCCA 299; 10 Crim LN 78 (1610); R v Mostyn [2004] NSWCCA 97). [156] As to extra curial punishment, it may be accepted that the respondent had lost altogether his career as a teacher by virtue of his commission o…
R v Rivkin
[2004] NSWCCA 7 Para 411

…dings essentially protective in nature rather than penal." 89 These statements were not the subject of adverse comment on appeal: see Regina v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 at [411]-[412] (Mason P, Wood CJ at CL and Sully J). Nevertheless, the label "extra-curial punishment" seems inapposite in relation to…
R v Durocher-Yvon
[2003] NSWCCA 299

…specific custodial situation that would reveal hardship out of the ordinary ( R v Totten [2003] NSWCCA 207; 10 Crim LN 61 (1582); R v Durocher-Yvon [2003] NSWCCA 299; 10 Crim LN 78 (1610); R v Mostyn [2004] NSWCCA 97). [156] As to extra curial punishment, it may be accepted that the respondent had lost altogether hi…
R v Totten
[2003] NSWCCA 207

…suggest that there would be imposed on the respondent any specific custodial situation that would reveal hardship out of the ordinary ( R v Totten [2003] NSWCCA 207; 10 Crim LN 61 (1582); R v Durocher-Yvon [2003] NSWCCA 299; 10 Crim LN 78 (1610); R v Mostyn [2004] NSWCCA 97). [156] As to extra curial punishment, it…
R v Daetz
[2003] NSWCCA 216 Para 65

…operly take into account as extra curial punishment”. The footnote refers to the decisions of R v KNL [2005] NSWWCCA 260, R v Daetz; R v Wilson [2003] NSWCCA 216 at [61][62] and Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [32].…
R v Rivkin
[2003] NSWSC 447

…The phrase has, however, been used in an expanded sense as appears from the judgment of Whealy J in R v Rivkin [2003] NSWSC 447; 198 ALR 400; 45 ACSR 366 at [54], albeit expressed in cautious terms as to the use of the phrase. "I turn then to consider a number of circumstances which have been discussed in the submi…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 3

…Pursuant to s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002 otherwise referred to as the guideline judgment on Form 1 matters reported (2002) 56 NSWLR 146. Given that this offence is identical in form to the two substantive offences there must be some impact on the ultimate sentence that is imposed.…
R v Blackman and Walters
[2001] NSWCCA 121 Para 88

…nishment of the offender can be met by a sentence other than one of full time imprisonment”. She refers to the decision of R v Blackman & Walters [2001] NSWCCA 121, which was an unsuccessful Crown appeal against the imposition of a non full-time custodial sentence for an offence of armed robbery. Wood CJ at CL (Stei…
Ryan v The Queen
[2001] HCA 21 Para 30

…Ms Alderton in her brief but helpful supplementary written submissions refers to the decisions of Ryan v The Queen (2001) 206 CLR 267 and Kennedy v R [2000] NSWCCA 527 at [21]. Ultimately Ms Alderton accepts that the offender’s “prior good character carries less weight than if he had committed an offence that had no…
R v Kennedy
[2000] NSWCCA 527 Para 30

…Ms Alderton in her brief but helpful supplementary written submissions refers to the decisions of Ryan v The Queen (2001) 206 CLR 267 and Kennedy v R [2000] NSWCCA 527 at [21]. Ultimately Ms Alderton accepts that the offender’s “prior good character carries less weight than if he had committed an offence that had no…
Yardley v Betts
(1979) 22 SASR 108

…[44] The Full Court also cited (at 147) with approval the following passage from the judgment of King CJ in Yardley v Betts (1979) 22 SASR 108 at 112‑3: "The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it…

Legislation cited in this decision · 2

Corporations Act 2001 (Cth)
1 mention
Crimes Act 1914 (Cth)
1 mention (from Para 73)

Medium Neutral Citation:	R v GALE [2020] NSWDC 79
Hearing dates:	13 March 2020
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced to an aggregate sentence of 1 year 8 months (imprisonment) with a non-parole period of 12 months.
Catchwords:	CRIME – sexual offences - young person between 16 and 18 under special care SENTENCING – aggravating factors – breach of trust SENTENCING – extra curial punishment
Legislation Cited:	Crimes Act, 1900 Crimes Act 1914 (Cth) Crimes (Domestic & Personal Violence) Act, 2007 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	The Attorney General’s Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002 (2002) 56 NSWLR 146 Merhi v R [2019] NSWCCA 322 Ryan v The Queen (2001) 206 CLR 267 Kennedy v R [2000] NSWCCA 527 R v KNL [2005] NSWWCCA 260 R v Daetz; R v Wilson [2003] NSWCCA 216 and Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 FB v R; R v FB [2011] NSWCCA 217 Einfeld v R (2010) 200 A Crim R 1 Greenwood v R [2014] NSWCCA 64 Whybrow v R [2008] NSWCCA 270 Alameddine v R [2006] NSWCCA 317 Ridley v R [2008] NSWCCA 299 Brown v R [2014] NSWCCA 215 SS v The Queen [2016] NSWCCA 197 R v Blackman & Walters [2001] NSWCCA 121 EF v R [2015] NSWCCA 36 R v Tsokos unreported NSWCCA 16.6.1995
Category:	Sentence
Parties:	Director of Public Prosecution (for the Crown) Brendan Gale (offender)
Representation:	Counsel: Ms Alderton (for the offender) Solicitors: Ms Morgan (for the DPP)
File Number(s):	2019/2532
Publication restriction:	No publication of the name of the victim or anything that would identify them.