R v GAM - [2020] NSWDC 304

District Court

New South Wales

Medium Neutral Citation: R v GAM [2020] NSWDC 304
Hearing dates: 11 June 2020
Date of orders: 16 June 2020
Decision date: 16 June 2020
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
See [ 63 ]

Catchwords:
CRIME — Sexual offences — Indecent assault — Circumstances of aggravation
CRIME — Sexual offences — Aggravated Indecent assault — Victim <16 Years
CRIME — Violent offences — Common assault

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) 56 NSWLR 146 per Spigelman CJ.
Muldrock v The Queen [2011] HCA 39
Jonson v R [2016] NSWCCA 286
R v Holder [1983] 3 NSWLR 245
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
EG v R [2015]; NSWCCA 21 at [42]

Texts Cited:
‘The Bugmy Bar Book’ The Public Defenders (Webpage)

Category: Sentence
Parties: Regina (Crown)
GAM (Offender)
Representation: Counsel: Mr Wiggins, Solicitor Advocate, for the Crown;
Mr Cochrane for the offender

File Number(s): 2019/00122247 & 2019/00333058
Publication restriction: Unrestricted

Contents

Judgment

Introduction

Charge, maximum sentence, SNPP

Form 1 procedure

Standard non-parole period

The facts

2018

Count 1 - 2018
Objective seriousness – count 1
Count 2 – 2018: facts and objective seriousness

2005 / 2006

Count 1 and form 1 matter
Count 2
Objective seriousness

Section 21A.

Subjective case

Psychiatric report
Testimonials
Guilty plea
Criminal history and Good character and prospects
Likelihood of reoffending
Relevance of the offender’s own childhood sexual abuse
Intoxication

Victim impact statement

Totality

Special circumstances

Sentencing considerations

Orders

Judgment

Introduction

The offender was born on 18 November 1973 and so is presently 46 years old. The offender is to be sentenced in respect of offending which occurred in October 2018 and in the period 1 December 2005 to 16 August 2006.

Charge, maximum sentence, SNPP

In respect of the 2018 offending there are 2 charges, both under the then section 61L of the Crimes Act being 2 counts of assault with an act of indecency. Each charge has a maximum sentence of 5 years imprisonment. There is no standard non-parole period. There are no matters to be dealt with by way of the Form 1 procedure nor are there any related or backup offences.
In respect of the 2005/2006 offending there is one count of aggravated indecent assault under section 61M(1) of the Crimes Act. This offence has a maximum penalty of 7 years imprisonment with a standard non-parole period of 5 years. There is a second charge under section 61 of the Crimes Act of common assault with a maximum penalty of 2 years. There is no standard non-parole period for this offence. In respect of the section 61M charge there is one matter to be dealt with by the Form 1 procedure. The offence here is a further occasion of aggravated indecent assault which occurred on the same occasion of the matter the subject…

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 GAM

Details

AGLC: R v GAM [2020] NSWDC 304
Case: [2020] NSWDC 304
Decision Date: 16 June 2020

CaseChat Overview and Summary

In the case of R v GAM, the respondent was charged with multiple offences, including aggravated indecent assault and common assault. The respondent pleaded guilty to one count of aggravated indecent assault and one count of common assault. The respondent had a prior conviction for a similar offence, which was an aggravating factor. The Supreme Court of Queensland presided over the case.

The legal issues before the court were whether the circumstances of the offence warranted an aggravated sentence and the appropriate sentence to be imposed. The court needed to consider the aggravating factors, including the respondent's prior conviction, the age of the victim, and the nature of the offence. The court also had to determine the appropriate punishment for the common assault charge.

The court found that the aggravating factors were significant and warranted a higher sentence. The court noted the respondent's prior conviction for a similar offence, the vulnerability of the victim due to their age, and the nature of the offence, which involved a sexual assault. The court considered these factors in determining the appropriate sentence. The court also considered the respondent's guilty plea and remorse, which were mitigating factors. Ultimately, the court found that the appropriate sentence for the aggravated indecent assault charge was imprisonment for a period of six years, with a non-parole period of four years. The court also imposed a sentence of imprisonment for the common assault charge, which was to run concurrently with the sentence for the aggravated indecent assault charge.

The court's final order was that the respondent be imprisoned for a period of six years, with a non-parole period of four years, for the aggravated indecent assault charge, and imprisonment for the common assault charge, which was to run concurrently. The court also ordered that the respondent be placed on the sex offender registry for a period of ten years.

Orders

Orders of the court

See [ 63 ]

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 GAM [2020] NSWDC 304
Hearing dates:	11 June 2020
Date of orders:	16 June 2020
Decision date:	16 June 2020
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [ 63 ]
Catchwords:	CRIME — Sexual offences — Indecent assault — Circumstances of aggravation CRIME — Sexual offences — Aggravated Indecent assault — Victim <16 Years CRIME — Violent offences — Common assault
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) 56 NSWLR 146 per Spigelman CJ. Muldrock v The Queen [2011] HCA 39 Jonson v R [2016] NSWCCA 286 R v Holder [1983] 3 NSWLR 245 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 EG v R [2015]; NSWCCA 21 at [42]
Texts Cited:	‘The Bugmy Bar Book’ The Public Defenders (Webpage)
Category:	Sentence
Parties:	Regina (Crown) GAM (Offender)
Representation:	Counsel: Mr Wiggins, Solicitor Advocate, for the Crown; Mr Cochrane for the offender
File Number(s):	2019/00122247 & 2019/00333058
Publication restriction:	Unrestricted