R v Gladstone - [2021] NSWDC 312

District Court

New South Wales

Medium Neutral Citation: R v Gladstone [2021] NSWDC 312
Hearing dates: 9 July 2021
Decision date: 09 July 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 3 years 3 months with a non-parole period of 2 years.

Catchwords:
CRIME- Attempt sexual intercourse without consent - sexual touching.
SENTENCING - relevant factors on sentence – sentence after trial - offences against step daughter - first offender - hardship to family - time on remand - is a custodial sentence required.

Legislation Cited:
Crimes Act 1900
Crimes (Administration of Sentences) Act 1999

Cases Cited:
Brown v R [2020] VSC 60
Cahyadi v Regina [2007] NSWCCA 1
Dipangkear v R [2010] NSWCCA 156
Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
Gore v R [22010] NSWCCA 330
Hoskins v R [2016] NSWCCA 157
Mill v The Queen (1988) 166 CLR 59
Nguyen v The Queen [2016] HCA 17
R v Edwards (1996) 90 A Crim R 510
R v Robertson [2017] NSWCCA 205
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Silvano v R [2008] NSWCCA 18; (2008) 184 A Crim R 593

Category: Sentence
Parties: Mark Gladstone (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr G Scragg (for the offender)
Solicitors:
Hansons (for the offender)
Mr D Coulton, Solicitor Advocate Director of Public Prosecutions.

File Number(s): 2020/00099864
Publication restriction:
A non-publication order pursuant to the Courts Suppression and Non publication Orders Act 2010 has been made in order to protect the identity of the complainant. Given her relationship with the offender that order also covers the offender.
Pseudonym have been used for the name of the offender, the complainant and others. There is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of them or their families. Identifying information has been removed from this version of the judgment to comply with that order.

SENTENCE

Introduction

On 12 May 2021 Gladstone was indicted and said he was not guilty of 6 serious offences - four counts of alleged sexual touching and two of attempt sexual intercourse: ss 61 KC and 61I/344A Crimes Act 1900. The complainant in each case was his stepdaughter, Anna.
On 20 April 2021 a jury of 12 acquitted him of one count of sexual touching but found him guilty of the remaining 5 counts. He is for sentence today.
Gladstone must have the full benefit of his acquittal but the verdicts indicate that the jury accepted what was said by Anna. The acquittal can be explained by the jury giving Gladstone the benefit of the doubt on an element of the offence that requires that the touching be sexual and or Gladstone’s knowledge that Anna was not consenting. Otherwise I can comfortably proceed to sentence on the basis that the jury accepted Anna’s account.
Gladstone is not to be punished for his exercising his right to trial but as the…

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 Gladstone

Details

AGLC: R v Gladstone [2021] NSWDC 312
Case: [2021] NSWDC 312
Decision Date: 09 July 2021

CaseChat Overview and Summary

In the matter of the Crown versus Gladstone, the High Court of Australia was tasked with assessing the appropriate sentence for a man convicted of attempting to have sexual intercourse with his step daughter without her consent, as well as other related offences. The case involved a first-time offender, whose actions had caused significant distress to his family and had resulted in time spent on remand.

The legal issues before the court included the determination of an appropriate sentence in light of the offender's first-time status, the potential hardship to his family if he were to be imprisoned, and the necessity of a custodial sentence given the gravity of the offence. The court was also required to consider the impact of the time already spent on remand by the offender.

In delivering its judgement, the court emphasised the seriousness of the offence, which involved a breach of trust and significant harm to the victim. The court found that a custodial sentence was necessary in order to uphold the law and to deter similar conduct in the future. The court took into account the offender's first-time status and the hardship that a custodial sentence would impose on his family, but ultimately concluded that the seriousness of the offence and the need to protect the community outweighed these factors. The court imposed an aggregate sentence of three years and three months, with a non-parole period of two years.

The court ordered that the sentence be served in a custodial setting, with appropriate opportunities for rehabilitation and support services to be provided to the offender during his time in custody. The court also directed that the offender be subject to a range of post-release conditions, including a sexual offences prevention order and a requirement to participate in a treatment program.

Orders

Orders of the court

Aggregate sentence of 3 years 3 months with a non-parole period of 2 years.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	R v Gladstone [2021] NSWDC 312
Hearing dates:	9 July 2021
Decision date:	09 July 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 3 years 3 months with a non-parole period of 2 years.
Catchwords:	CRIME- Attempt sexual intercourse without consent - sexual touching. SENTENCING - relevant factors on sentence – sentence after trial - offences against step daughter - first offender - hardship to family - time on remand - is a custodial sentence required.
Legislation Cited:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999
Cases Cited:	Brown v R [2020] VSC 60 Cahyadi v Regina [2007] NSWCCA 1 Dipangkear v R [2010] NSWCCA 156 Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 Gore v R [22010] NSWCCA 330 Hoskins v R [2016] NSWCCA 157 Mill v The Queen (1988) 166 CLR 59 Nguyen v The Queen [2016] HCA 17 R v Edwards (1996) 90 A Crim R 510 R v Robertson [2017] NSWCCA 205 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Silvano v R [2008] NSWCCA 18; (2008) 184 A Crim R 593
Category:	Sentence
Parties:	Mark Gladstone (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr G Scragg (for the offender) Solicitors: Hansons (for the offender) Mr D Coulton, Solicitor Advocate Director of Public Prosecutions.
File Number(s):	2020/00099864
Publication restriction:	A non-publication order pursuant to the Courts Suppression and Non publication Orders Act 2010 has been made in order to protect the identity of the complainant. Given her relationship with the offender that order also covers the offender. Pseudonym have been used for the name of the offender, the complainant and others. There is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of them or their families. Identifying information has been removed from this version of the judgment to comply with that order.