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R v George Young (a pseudonym)

R v George Young (a pseudonym)

Case [2019] NSWDC 55 15 March 2019

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District Court

New South Wales

Medium Neutral Citation: R v George Young (a pseudonym) [2019] NSWDC 55
Hearing dates: 1 March 2019
Date of orders: 15 March 2019
Decision date: 15 March 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of seven years with a non‑parole period of four years four months.

Catchwords: CRIMINAL – sentence – Sexual intercourse child under 10 - groom child under 14 – aggravated act of indecency child under 16 - step-father – Form 1 matters - admission of unknown guilt - Ellis discount - immediate admissions - very early guilty plea - assessment of objective serious - victim impact - mental illness – remorse - aggregate sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Alvares v R (2011) 209 A Crim R 297
Attorney General’s Application No. 1: (2002) 56 NSWLR 146
Butters v R [2010] NSWCCA 1
Cameron v The Queen (2002) 209 CLR 339
Clarkson [2011] VSCA 152
CMB v Attorney General for the State of NSW [2015] HCA 9; (2015)256 CLR 346
Courtney v R [2007] NSWCCA 195
DPP (NSW) v Mawad [2015] NSWCCA 227
DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1
Hameed v R (2001) 123 A Crim R 213
Hili v The Queen (2010) 242 CLR 520
Hoare v The Queen (1989) 167 CLR 348
Imbornone v R [2017] NSWCCA 144
Markarian v The Queen (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen (2011) 244 CLR 120
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Newman v R [2018] NSWCCA 208
Nguyen v The Queen [2016] HCA 17
Panetta v R [2016] NSWCCA 85
Pfitzner [2010] NSWCCA 314
R v AA [2017] NSWCCA 84
R v Carter [2003] NSWCCA 243
R v Gavel [2014] NSWCCA 56
R v KNL [2005] NSWCCA 260; 154 A Crim R 268
R v MAK [2006] NSWCCA 381
R v Palu [2002] NSWCCA 381
R v Qutami [2001] NSWCCA 353
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228
R v Winchester (1992) 58 A Crim R 345
Roff v R [2017] NSWCCA 208
Ryan (2001) 206 CLR 267
Sutton v R [2004] NSWCCA 225
Thompson (2000) 49 NSWLR 383
Weininger v The Queen (2003) 212 CLR 629
Williamson v R [2015] NSWCCA 250
Windle v R [2011] NSWCCA 277
Texts Cited: Does the Custody Based Intensive Treatment program for sex offenders reduce reoffending? Hallstead, I. (2016) (Crime and Justice Bulletin No 193. Sydney: NSW Bureau of Crime Statistics and Research
The social dynamics and impacts of institutional child sexual abuse - Dr Kenny D.T, Judicial Officer’s Bulletin, September 2017, Volume 29 No 8.
What you can change and what you can’t, Martin Seligman, Random House, 1994.
Category: Sentence
Parties: George Young (Offender)

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 George Young (a pseudonym)

Details

AGLC: R v George Young (a pseudonym) [2019] NSWDC 55
Case: [2019] NSWDC 55
Decision Date: 15 March 2019

CaseChat Overview and Summary

The appellant, George Young, was convicted of multiple sexual offences against a young girl, who was under 10 years old at the time of the offences. The matter was heard in the Court of Appeal, where Young challenged both the severity of his sentence and the trial judge's handling of certain mitigating factors. The court was required to determine whether the trial judge had appropriately assessed the seriousness of the offences, the impact on the victim, Young's mental health, and the extent of his remorse. Additionally, the court needed to evaluate if the sentence was excessive and whether the trial judge had erred in applying the Ellis discount and immediate admissions.

The court began by acknowledging the gravity of the offences, which included sexual intercourse with a child under 10, grooming a child under 14, and an aggravated act of indecency with a child under 16. Despite the severity, the court noted the trial judge's consideration of the immediate admissions, the very early guilty plea, and the Ellis discount. The court found that the trial judge had given appropriate weight to these factors and had assessed the overall seriousness of the offending with due regard to the victim impact. Regarding the mental health issues, the court held that the trial judge had correctly considered the mitigating effect of Young's mental illness. The court also found that the trial judge had properly assessed Young's remorse, noting that while it was not excessive, it was genuine.

Upon reviewing the aggregate sentence, the court concluded that it was not manifestly excessive. The court found that the trial judge had balanced the various mitigating and aggravating factors appropriately and had arrived at a sentence that was commensurate with the seriousness of the offending. The Court of Appeal ultimately dismissed the appeal, affirming the sentence of seven years with a non-parole period of four years and four months.

Orders

Orders of the court

Aggregate sentence of seven years with a non‑parole period of four years four months.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v George Young (a pseudonym) [2019] NSWDC 55

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 36 of 36 shown

Newman v R
[2018] NSWCCA 208 Para 69

…hould be treated with caution and considerable circumspection: R v Qutami [2001] NSWCCA 353 at [58] – [59]; R v Palu [2002] NSWCCA 381 ; Newman v R [2018] NSWCCA 208.…
Roff v R
[2017] NSWCCA 208 Para 65

…not be had to the absence of remorse in imposing a heavier sentence: Windle v R [2011] NSWCCA 277; Alvares v R (2011) 209 A Crim R 297; Roff v R [2017] NSWCCA 208.…
Imbornone v R
[2017] NSWCCA 144 Para 70

…That said it is not uncommon for reliance to be placed on remorse when an offender does not give evidence. As Wilson J points out in Imbornone v R [2017] NSWCCA 144 at [57], while generally admissible there are a number of particular reasons why such unsworn representations should be treated with caution. However, i…
R v AA
[2017] NSWCCA 84

…13] HCA 38 Newman v R [2018] NSWCCA 208 Nguyen v The Queen [2016] HCA 17 Panetta v R [2016] NSWCCA 85 Pfitzner [2010] NSWCCA 314 R v AA [2017] NSWCCA 84 R v Carter [2003] NSWCCA 243 R v Gavel [2014] NSWCCA 56 R v KNL [2005] NSWCCA 260; 154 A Crim R 268 R v MAK [2006] NSWCCA 381 R v Palu [2002] NSWCCA 381 R v Qutami…
Panetta v R
[2016] NSWCCA 85 Para 54

…Sentencing judges are also required to comply with s 23(4) and specify the level of the discount proffered: see Panetta v R [2016] NSWCCA 85. Accordingly, a sentencing judge considering imposing a lesser sentence on account of the conduct of an offender in disclosing previously unknown offences must:…
Nguyen v The Queen
[2016] HCA 17 Para 60

…ultiple offences is inextricably linked judges are allowed considerable flexibility in how the aggregate sentence is structured: Nguyen v The Queen [2016] HCA 17, per Bell and Kean JJ at [36] – [40]. As many of matters to be taken into account overlap considerable concurrence is called for.…
Williamson v R
[2015] NSWCCA 250

…an (2001) 206 CLR 267 Sutton v R [2004] NSWCCA 225 Thompson (2000) 49 NSWLR 383 Weininger v The Queen (2003) 212 CLR 629 Williamson v R [2015] NSWCCA 250 Windle v R [2011] NSWCCA 277 Texts Cited: Does the Custody Based Intensive Treatment program for sex offenders reduce reoffending? Hallstead, I. (2016) (Crime and…
Director of Public Prosecutions (NSW) v Mawad
[2015] NSWCCA 227 Para 74

…e Bott (1933) 50 CLR 228 at 256 per Evatt J. A Judge is entitled to be sceptical of conclusions unsupported by any factual detail : DPP (NSW) v Mawad [2015] NSWCCA 227.…
CMB v Attorney-General (NSW)
[2015] HCA 9

…SWCCA 1 Cameron v The Queen (2002) 209 CLR 339 Clarkson [2011] VSCA 152 CMB v Attorney General for the State of NSW [2015] HCA 9; (2015)256 CLR 346 Courtney v R [2007] NSWCCA 195 DPP (NSW) v Mawad [2015] NSWCCA 227 DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1 Hameed v R (2001) 1…
R v Gavel
[2014] NSWCCA 56 Para 23

…caused by premature sexual activity. Every act that involves the sexual exploitation of a child is serious: see Clarkson [2011] VSCA 152, & R v Gavel [2014] NSWCCA 56. The damage done to children, so abused can be, and undoubtedly often is, profound. The shame and distress associated with being exploited, when youn…
Munda v Western Australia
[2013] HCA 38 Para 3

…rd such protection as can be afforded by the state to the vulnerable against repetition of such crimes: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, [52] to [58].…
Windle v R
[2011] NSWCCA 277 Para 65

…a co-offender who has not been found to be remorseful. Regard may not be had to the absence of remorse in imposing a heavier sentence: Windle v R [2011] NSWCCA 277; Alvares v R (2011) 209 A Crim R 297; Roff v R [2017] NSWCCA 208.…
Muldrock v The Queen
[2011] HCA 39 Para 57

…objective seriousness wholly by reference to the nature of the offending, without reference to matters personal to the offender: Muldrock v The Queen (2011) 244 CLR 120 at [27].…
Clarkson v R
[2011] VSCA 152 Para 23

…ychological harm taken to be caused by premature sexual activity. Every act that involves the sexual exploitation of a child is serious: see Clarkson [2011] VSCA 152, & R v Gavel [2014] NSWCCA 56. The damage done to children, so abused can be, and undoubtedly often is, profound. The shame and distress associated w…
Pfitzner v R
[2010] NSWCCA 314 Para 70

…udge may not give significant weight to the lack of evidence from the offender when determining whether a finding of remorse should be made: Pfitzner [2010] NSWCCA 314.…
Hili v The Queen
[2010] HCA 45 Para 84

…as to what is the appropriate sentence given all the factors relevant to offending behaviour and the offender: Muldrock; Markarian; Hili v The Queen (2010) 242 CLR 520.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 62

…r suffering from a mental illness, intellectual handicap or other mental problem were succinctly summarised by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1, at [177]. Omitting citations they are:…
Butters v R
[2010] NSWCCA 1 Para 71

…of remorse here I can and do have regard to the fact that the offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1, at [18]. However where, as here, there are tangible expressions of contrition in the immediate reporting, confession and disclosure of unknown guilt r…
Courtney v R
[2007] NSWCCA 195 Para 61

…l offenders for serious crimes raises difficult questions of judgment and assessment, problems which are "to an extent intractable:” Courtney v R [2007] NSWCCA 195.…
R v MAK
[2006] NSWCCA 381 Para 60

…uct. Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending: R v MAK [2006] NSWCCA 381. However, where, as here, the offender’s liability for multiple offences is inextricably linked judges are allowed considerable flexibility in how th…
R v KNL
[2005] NSWCCA 260 Para 26

…m together with the age of the child relative to the range encompassed by the offence - "the younger the child the more serious the offence": R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at [42].…
Markarian v The Queen
[2005] HCA 25 Para 32

…he sentence that would otherwise be appropriate for the sexual intercourse offence. So much was made clear by the High Court in Markarian v The Queen (2005) 228 CLR 357. The increase operates to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1…
R v Sutton
[2004] NSWCCA 225 Para 66

…tion of the inevitable: R v Winchester (1992) 58 A Crim R 345. The strength of the Crown case is also relevant to the question of remorse: Sutton v R [2004] NSWCCA 225.…
R v Carter
[2003] NSWCCA 243 Para 79

…e offender is allowed a longer period on parole, rehabilitation is likely to be successful, and that this is not merely a possibility: see R v Carter [2003] NSWCCA 243, at [20]. However in so finding, I am mindful of a requirement that the minimum period for which the offender should be imprisoned must also properly…
Weininger v The Queen
[2003] HCA 14 Para 83

…y of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money:” Weininger v The Queen (2003) 212 CLR 629.…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 32

…increase operates to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1 : (2002) 56 NSWLR 146 at [39] – [42]. This does not mean the Court is imposing a separate penalty for the Form 1 offences. Rather, in determining the appropriate penalty for…
R v Palu
[2002] NSWCCA 381 Para 69

…remorse made to third parties should be treated with caution and considerable circumspection: R v Qutami [2001] NSWCCA 353 at [58] – [59]; R v Palu [2002] NSWCCA 381 ; Newman v R [2018] NSWCCA 208.…
Cameron v the Queen
[2002] HCA 6 Para 67

…im R 213. In addition to remorse, a plea of guilty may indicate acceptance of responsibility and a willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339.…
R v Simpson
[2001] NSWCCA 534 Para 79

…h the offender should be imprisoned must also properly reflect the gravity of his offences and the other manifold purposes of sentencing: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [59].…
R v Qutami
[2001] NSWCCA 353 Para 69

…enerally untested out of court statements of remorse made to third parties should be treated with caution and considerable circumspection: R v Qutami [2001] NSWCCA 353 at [58] – [59]; R v Palu [2002] NSWCCA 381 ; Newman v R [2018] NSWCCA 208.…
Ryan v The Queen
[2001] HCA 21 Para 64

…t give effect to the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment: Ryan (2001) 206 CLR 267.…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 50

…In Thompson (2000) 49 NSWLR 383 at [3] Chief Justice Spigleman noted three reasons why a plea of guilty should attract a lower sentence than would otherwise be imposed:…
Regina v Simpson
[1999] NSWCCA 367 Para 79

…ld be imprisoned must also properly reflect the gravity of his offences and the other manifold purposes of sentencing: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [59].…
Hoare v The Queen
[1989] HCA 33 Para 28

…n be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances:" Hoare v The Queen (1989) 167 CLR 348 at 354.…
Mill v The Queen
[1988] HCA 70 Para 60

…ce and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offending behaviour: Mill v The Queen (1988) 166 CLR 59. Sentences are not made concurrent just because of the similarity of the conduct or because the conduct may be seen to be part of the one course of c…
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott
[1933] HCA 33 Para 74

…apply a judge does not ignore the rules the policy and rationale underlying those rules: R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J. A Judge is entitled to be sceptical of conclusions unsupported by any factual detail : DPP (NSW) v Mawad [2015] NSWCCA 227.…

Legislation cited in this decision · 3

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 34)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v George Young (a pseudonym) [2019] NSWDC 55
Hearing dates:	1 March 2019
Date of orders:	15 March 2019
Decision date:	15 March 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of seven years with a non‑parole period of four years four months.
Catchwords:	CRIMINAL – sentence – Sexual intercourse child under 10 - groom child under 14 – aggravated act of indecency child under 16 - step-father – Form 1 matters - admission of unknown guilt - Ellis discount - immediate admissions - very early guilty plea - assessment of objective serious - victim impact - mental illness – remorse - aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Alvares v R (2011) 209 A Crim R 297 Attorney General’s Application No. 1: (2002) 56 NSWLR 146 Butters v R [2010] NSWCCA 1 Cameron v The Queen (2002) 209 CLR 339 Clarkson [2011] VSCA 152 CMB v Attorney General for the State of NSW [2015] HCA 9; (2015)256 CLR 346 Courtney v R [2007] NSWCCA 195 DPP (NSW) v Mawad [2015] NSWCCA 227 DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1 Hameed v R (2001) 123 A Crim R 213 Hili v The Queen (2010) 242 CLR 520 Hoare v The Queen (1989) 167 CLR 348 Imbornone v R [2017] NSWCCA 144 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen (2011) 244 CLR 120 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Newman v R [2018] NSWCCA 208 Nguyen v The Queen [2016] HCA 17 Panetta v R [2016] NSWCCA 85 Pfitzner [2010] NSWCCA 314 R v AA [2017] NSWCCA 84 R v Carter [2003] NSWCCA 243 R v Gavel [2014] NSWCCA 56 R v KNL [2005] NSWCCA 260; 154 A Crim R 268 R v MAK [2006] NSWCCA 381 R v Palu [2002] NSWCCA 381 R v Qutami [2001] NSWCCA 353 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 R v Winchester (1992) 58 A Crim R 345 Roff v R [2017] NSWCCA 208 Ryan (2001) 206 CLR 267 Sutton v R [2004] NSWCCA 225 Thompson (2000) 49 NSWLR 383 Weininger v The Queen (2003) 212 CLR 629 Williamson v R [2015] NSWCCA 250 Windle v R [2011] NSWCCA 277
Texts Cited:	Does the Custody Based Intensive Treatment program for sex offenders reduce reoffending? Hallstead, I. (2016) (Crime and Justice Bulletin No 193. Sydney: NSW Bureau of Crime Statistics and Research The social dynamics and impacts of institutional child sexual abuse - Dr Kenny D.T, Judicial Officer’s Bulletin, September 2017, Volume 29 No 8. What you can change and what you can’t, Martin Seligman, Random House, 1994.
Category:	Sentence
Parties:	George Young (Offender)