District Court
New South Wales
Medium Neutral Citation: R v Golding [2021] NSWDC 322 Hearing dates: 16 July 2021 Date of orders: 16 July 2021 Decision date: 16 July 2021 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 82
Catchwords: SENTENCE – sexual assault offence – victim and offender had previous casual sexual relationship – content of offender’s knowledge of lack of consent – good character – significance of assault after subject offending to offender’s good character
Legislation Cited: Crimes Act 1900 (NSW) s 61I
Crimes (Sentencing Procedure) Act1999 (NSW) ss 3A, 5
Cases Cited: BellchambersvR [2011] NSWCCA 131
Bugmy v The Queen (2013) 249 CLR 571
Cheungv The Queen (2001) 209 CLR 1
DPP (NSW) v Burton [2020] NSWCCA 54
NMvR [2012] NSWCCA 215
RvAEM [2002] NSWCCA 58
R vAJP [2004] NSWCCA 434
RvCortese [2013] NSWCCA 148
RvHibberd (2009) 194 A Crim R 1
RvHibberd (2009) 194 A Crim R 1
R v Hines (No.3) [2014] NSWSC 1273
R vOlbrich (1999) 199 CLR 270
RvPGM (2008) 187 A Crim R 152
RvShortland [2018] NSWCCA 34
Texts Cited: Nil.
Category: Sentence Parties: Director of Public Prosecutions (NSW)
Mr K Golding (offender)Representation: Counsel:
Solicitors:
Mr P Swaine for the offender
Mr S Burton (solicitor advocate) for the Director of Public Prosecutions (NSW)
Solicitor for the Director of Public Prosecutions (NSW)
LegalAid (NSW) for the offender
File Number(s): 2019/361953 Publication restriction: Nil.
SENTENCING REMARKS
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The offender is before the Court for sentencing following verdicts of guilt by a jury rendered on 10 May 2021 in a trial on indictment before me. He was found guilty of four counts of sexual assault against the victim, contrary to s 61I of the Crimes Act1900 (NSW). The sexual assaults were all perpetrated against the victim in her home in Woy Woy on 29 October 2019.
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The maximum penalty for this offence is 14 years’ imprisonment. The standard non-parole period for the offending is 7 years’ imprisonment.
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My task is to sentence the offender on facts which conform with the jury’s verdicts, but also on the basis that to the extent that the Crown relies upon disputed facts adverse to the offender, it must prove them beyond reasonable doubt. Conversely, where the offender relies upon disputed facts favourable to him, he must prove them on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ. In Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict”. Fact…
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- AGLC
- R v Golding [2021] NSWDC 322
- Case
- [2021] NSWDC 322
- Decision Date
CaseChat Overview and Summary
The Court considered the principles of evidence law as they pertain to good character and its relevance to knowledge of consent. The Court concluded that while the appellant's good character might be relevant to his credibility or propensity to commit the offence, it was not directly relevant to his knowledge of the lack of consent by the complainant. The Court emphasised that the focus should be on the circumstances of the offence and the appellant's conduct at the time, rather than on his general reputation. The Court further held that the trial judge's failure to direct the jury on this specific point was not a miscarriage of justice, as the jury was adequately directed on the essential elements of the offence, including the requirement of non-consent.
The Court also considered the impact of the assault on the appellant's good character, but found that this did not alter the conclusion that the trial judge's failure to give the specific direction was not a miscarriage of justice. The Court found that the jury was properly directed on the elements of the offence, and that the omission did not affect the safety of the conviction. The Court ultimately upheld the conviction and sentence, but noted that the matter could be revisited if the appellant sought to appeal on the basis of the trial judge's failure to direct the jury on this specific point.
Orders
Orders of the court
See paragraph 82
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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