District Court
New South Wales
Medium Neutral Citation: R v GCS [2020] NSWDC 458 Hearing dates: 9 March 2020 Date of orders: 16 March 2020 Decision date: 16 March 2020 Jurisdiction: Criminal Before: Judge Priestley SC Decision: See [14]
Catchwords: CRIME — Sexual offences — Indecent assault — Circumstances of aggravation
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: EJDG [2012] NSWCCA 251
Texts Cited: Nil
Category: Principal judgment Parties: Regina (Crown)
GSC (Accused)Representation: Counsel: Mr Clark solicitor for the Crown
Mr Hussey for the offender
File Number(s): 2019/00175659 Publication restriction: Unrestricted – Anonymised
Judgment
The offender appears for sentence in respect of three charges of aggravated indecent assault. The first offence took place in 2001 against his eldest daughter AS when AS was 11 years old. The relevant legislation at that time was section 61M (1) Crimes Act which provided for a maximum sentence of seven years. The circumstance of aggravation was that the victim was under the age of 16 years. There is no standard non-parole period in respect of this offence. The second and third offences occurred in early 2010 against the youngest daughter of the offender, SS, who at the time was 10 years old. The relevant legislation at that time was section 61M (2) which provided that where a person commits an act of indecency on or in the presence of the other person they are liable to imprisonment for 10 years if the other person is under the age of 16 years. The circumstance of aggravation for these offences is that the victim was under the authority of the alleged offender in this case her father. There is a standard non-parole period for the second and third offences of eight years.
The offender pleaded guilty at the earliest opportunity and is therefore entitled to the 25% discount on his sentence.
There are no matters on a Form 1 to be taken into account.
The offender was arrested in respect of these offences on 5 June 2019. At that time he was in custody for similar offending but which post dated the offending currently being sentenced. The offender was eligible for parole in respect of those matters on 23 August 2019 and the head sentence expired on 23 February 2020. The Crown concedes that in sentencing for the present matters the time in custody since 23 August 2019 should be taken into account but no more. The submission on behalf of the offender was that further time in custody should be taken into account on the basis of giving effect to the totality principle.
The facts
The facts can be shortly stated. The 2001 offence occurred when the offender was driving the victim home after a school play. In the course of what was a 30 minute car trip at night the offender put his left hand in between the victim’s legs and rubbed and fondled her vagina…
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- AGLC
- R v GCS [2020] NSWDC 458
- Case
- [2020] NSWDC 458
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the trial judge had correctly applied the law in assessing the circumstances of aggravation. The defendant argued that the trial judge had erred in finding that certain circumstances amounted to aggravation. The court needed to determine whether the trial judge's findings were supported by the evidence and whether they correctly applied the legal principles to those findings.
The court examined the evidence presented during the trial and the reasoning of the trial judge in detail. It found that the trial judge had correctly identified and applied the relevant legal principles to the circumstances of the case. The court held that the evidence supported the trial judge's findings of aggravation, and thus affirmed the conviction. Regarding the sentence, the court found that the trial judge had appropriately considered the aggravating factors and the defendant's personal circumstances in imposing the sentence. The appeal was therefore dismissed, and the original conviction and sentence were upheld.
The final orders of the court were to dismiss the appeal and affirm the conviction and sentence imposed by the trial judge.
Orders
Orders of the court
See [14]
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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