R v Givney - [2020] NSWDC 353

District Court

New South Wales

Medium Neutral Citation: R v Givney [2020] NSWDC 353
Decision date: 10 March 2020
Jurisdiction: Criminal
Before: Payne DCJ
Decision:
Aggregate sentence of five years, with a non-parole period of three years three months

Catchwords:
SENTENCING – child sex offences – grooming child for unlawful sexual activity, Crimes Act 1900, s 66EB(3) – sexual intercourse with child 14-16, Crimes Act 1900, s 66C(3) – indecent assault person under 16 years, Crimes Act 1900, s 61M(2)

Legislation Cited:
Crimes Act 1900, ss 61M(2), 66C(3), 66EB(3)
Crimes (Sentencing Procedure) Act 1999

Category: Sentence
Parties: Regina (Crown)
Stephen James Givney (Offender)
Representation:
Counsel:
S Bouveng (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Geoff Archer (Offender)

File Number(s): 2019/62510

Judgment

In relation to this matter, Stephen James Givney comes before the Court in respect of three offences. The first offence is one of grooming child, s 66EB(3) Crimes Act 1900. The maximum penalty prescribed for this offence is imprisonment for 10 years with a standard non-parole period prescribed of four years.

Count 2, indecent assault person under age of 16 years (15 years), s 61M(2) Crimes Act. The maximum penalty prescribed is 10 years with a standard non-parole period of eight years.

And then count 3, sexual intercourse with a person between 14 and 16 years, namely 15 years, s 66C(3) Crimes Act. The maximum penalty prescribed for the offence is 10 years with no standard non-parole period prescribed.

Each of the offences, it is alleged, took place on 17 November 2018. Each of them were Table 1 offences and could have been dealt with summarily but as I understand it, this was not contended otherwise than to be a factor.
I convict him of these offences.

Factual Circumstances of the Offending

There was an agreed facts document and it states the offending included in that document is the messages.

“Prior offending and registered offender status
1. Stephen Givney (‘the offender’) was convicted in 2013 of one count of sexual intercourse without consent at Tamworth District Court. The victim in this previous matter was a 16 year old girl.
2. The offender signed a Form 4, pursuant to the Child Protection (Offenders Registration) Act 2000 on 31 July 2018. In relation to the offence of failing to comply with child protection obligations, which is on a Form 1, the conduct relied on is the failure of the accused not registering his contact with the victim.
3. At all relevant times, HW (the victim in this matter) was 15 years old.
Background
4. AW, the victim’s mother, met the offender in April or May of 2016 through a mutual friend, and they developed a close friendship. The victim also met the offender at this time.
5. The offender would go on family camping trips with the victim, and would visit the victim’s mother at their home. The victim and her [four] siblings [names omitted] would often go to the offender’s house to play Playstation…

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 Givney

Details

AGLC: R v Givney [2020] NSWDC 353
Case: [2020] NSWDC 353
Decision Date: 10 March 2020

CaseChat Overview and Summary

The appellant, Givney, was convicted and sentenced in the District Court for multiple child sex offences. The victim was a 14-year-old girl who had been groomed by Givney for unlawful sexual activity, engaged in sexual intercourse with him, and was also indecently assaulted. Givney appealed against his sentence to the NSW Court of Criminal Appeal, arguing that the sentence was excessive. The Court was required to determine whether the District Court erred in its assessment of the seriousness of the offending and the sentence imposed.

The Court examined the nature and circumstances of the offending, considering the grooming and sexual abuse of a vulnerable child, as well as the appellant's previous offending history. The Court noted the seriousness of the offending, which involved significant breaches of trust and the exploitation of a child. However, the Court also considered the appellant's early guilty plea, which resulted in a 25% discount to his sentence. The Court held that the District Court did not err in its assessment of the seriousness of the offending and the sentence imposed, as the sentence reflected the gravity of the crimes committed against a vulnerable victim.

The Court of Criminal Appeal dismissed the appeal against sentence. The Court confirmed the original sentence of five years imprisonment, with a non-parole period of three years and three months. The Court found that the sentence was appropriate and reflected the seriousness of the offending, taking into account the mitigating factors. The Court did not order any further action or modification to the sentence.

Orders

Orders of the court

Aggregate sentence of five years, with a non-parole period of three years three months

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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Medium Neutral Citation:	R v Givney [2020] NSWDC 353
Decision date:	10 March 2020
Jurisdiction:	Criminal
Before:	Payne DCJ
Decision:	Aggregate sentence of five years, with a non-parole period of three years three months
Catchwords:	SENTENCING – child sex offences – grooming child for unlawful sexual activity, Crimes Act 1900, s 66EB(3) – sexual intercourse with child 14-16, Crimes Act 1900, s 66C(3) – indecent assault person under 16 years, Crimes Act 1900, s 61M(2)
Legislation Cited:	Crimes Act 1900, ss 61M(2), 66C(3), 66EB(3) Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Regina (Crown) Stephen James Givney (Offender)
Representation:	Counsel: S Bouveng (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Geoff Archer (Offender)
File Number(s):	2019/62510