R v GP

Case [2019] NSWDC 493 16 September 2019

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v GP [2019] NSWDC 493
Hearing dates: 6 September 2019
Date of orders: 16 September 2019
Decision date: 16 September 2019
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced to imprisonment – see [67] and [68]

Catchwords:
Crimes - unlawful sexual relationship with a child – assault with act of indecency on a child – plea of guilty at arraignment
Crimes – sentencing – moral culpability - remorse
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Cameron v The Queen (1999) 209 CLR 339
Xiao v R [2018] NSWCCA 4
KAB v R [2015] NSWCCA 55
Bugmy v The Queen [2013] HCA 37
MC v R [2017] NSWCCA 316
Mills v R [2017] NSWCCA 87
R v Burchell (1987) 34 A Crim R 148
R v Muldoon unrep. NSWCCA 13.12.1990
R v SAG (2004) 147 A Crim R 301
R v Tuala [2015] NSWCCA 8
R v Van Ryn [2016] NSWCCA 1
Category: Sentence
Parties: GP (Offender)
Director of Public Prosecutions (Crown)
Representation:
Counsel:
Mr Scragg (for the Offender)
Solicitors:
Mr A Dixon (for the Crown)

File Number(s): 2017/281818, 2018/74075
Publication restriction: The court reminds all concerned that the relevant legislation provides that there must be no publication of the names of the complainants or anything that might identify them. For this reason given the familial relationship the name of the offender has been initialised.

REMARKS ON SENTENCE

The court reminds all concerned that the relevant legislation provides that there must be no publication of the names of the complainants or anything that might identify them. For this reason given the familial relationship the name of the offender has been initialised.

At arraignment on 17 May 2019 the offender pleaded guilty to two counts on an indictment, namely:

That (he) between 21 March 2013 and 1 November 2013 at [ ] in the State of New South Wales, Tin Can Bay in the State of Queensland and at Canberra in the Australian Capital Territory did maintain an unlawful sexual relationship with TTA a child then under the age of 16 years, namely 12-13 years, in which the accused engaged in the following two or more unlawful sexual acts:

Touching TTA on the breasts

Having TTA perform fellatio on him

Performing Cunnilingus on TTA

Having penile-vaginal intercourse with TTA on more than one occasion.

And

That (he) on 15 September 2017 at a location between Temora and Sydney in the State of New South Wales did assault JT and at the time of such assault committed an act of indecency on JT a child then under the age of 16 years, namely 13 years.

The first offence is contrary to s 66EA(1) of the Crimes Act 1900 and the second offence is contrary to s 61M(2) of the Crimes Act. The first offence carries a maximum penalty of life imprisonment and the second offence carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period…

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 GP

Details

AGLC: R v GP [2019] NSWDC 493
Case: [2019] NSWDC 493
Decision Date: 16 September 2019

CaseChat Overview and Summary

The accused, GP, stood trial in the Supreme Court of Victoria on charges relating to unlawful sexual relationships with a child and assault with an act of indecency. The case arose from incidents occurring when the victim was under the age of 16, and GP entered a plea of guilty at the arraignment. The court was tasked with determining an appropriate sentence, taking into account the severity of the crimes and the defendant's moral culpability and level of remorse.

The legal issues before the court were centred on the appropriate sentencing principles to apply in cases of sexual offences against a child. The court had to consider the gravity of the offences, the impact on the victim, and the defendant's moral culpability, including whether there was any genuine remorse shown by GP. Given the plea of guilty, the court also needed to determine if this plea should be taken into account in the sentencing process.

The court found that the offences were of high severity due to the vulnerability of the victim and the nature of the crimes. It was noted that GP had shown some level of remorse, which was a mitigating factor. However, the court determined that the primary aggravating factor was the breach of trust and the significant impact on the victim. Consequently, the court sentenced GP to a term of imprisonment, considering both the need for punishment and the deterrence of similar offences. The exact term of imprisonment was specified in the court's detailed sentencing remarks.

Orders

Orders of the court

Sentenced to imprisonment – see [67] and [68]

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.

Actions

Citations

R v GP [2019] NSWDC 493

Most Recent Citation

Director of Public Prosecutions v Butler (a pseudonym) [2019] VCC 1585

Cases Citing This Decision

R v Rose [2022] NSWDC 705
Citation 1 (Para 80)

…R v GP [2019] NSWDC 493 was a sentence proceeding in respect of 1 offence contrary to s 66EA(1) and a second offence relating to an act of indecency on a 13 year old contrary to s 61M(2) of the Crimes Act 1900. The victims were sisters and the offender had been in a relationship with their mother for some 10 years.…
GP (a pseudonym) v R [2021] NSWCCA 180
Citation 2

…roceedings) Act 1987, s 15A). Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2019] NSWDC 493 Date of Decision: 16 September 2019 Before: Lerve DCJ File Number(s): 2017/281818 and 2018/74075…
R v RM [2020] NSWDC 52
Citation 3 (Para 35)

…carry a standard non-parole period. However, it is still necessary to make some assessment of the seriousness of the matter. As I observed in R v GP [2019] NSWDC 493 at [25] the following matters go to inform the seriousness of an offence contrary to s 66EA(1) of the Crimes Act :…
Director of Public Prosecutions v Butler (a pseudonym) [2019] VCC 1585
Citation 4

…Act and the provisions of s.66EA would have allowed the New South Wales court to deal with the Victorian offences, as has been done in The Queen v GP [2019] NSWDC 493 of 16 September 2019 and in The Queen v D&M [2018] NSWDC 62 of 23 March 2018. 48I will, as a consequence of these matters, give weight to the sentenc…

See all citing cases →

Cases Cited

Xiao v R [2018] NSWCCA 4
Citation 1 (Para 4)

…of justice. That expression is usually reserved for Commonwealth offending – see e.g. Cameron v The Queen (1999) 209 CLR 339 but see also Xiao v R [2018] NSWCCA 4. As I observed at the sentence hearing, to do as submitted by counsel would be double-counting. The numerical discount takes into account the various u…
MC v R [2017] NSWCCA 316
Citation 2 (Para 37)

…Other cases include R v Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316.…
Mills v R [2017] NSWCCA 87
Citation 3 (Para 59)

…After receiving the papers in advance I did some research and had my Associate refer the parties to the decision of Mills v R [2017] NSWCCA 87. Both parties accepted that the offending in that matter was more serious than the matter presently under consideration. I agree with that assessment. However, as the Crown…
R v Van Ryn [2016] NSWCCA 1
Citation 4 (Para 36)

…the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at [179] where his Honour said:…
Bravo v R [2015] NSWCCA 302
Citation 5

…nvolved, including whether there was ejaculation. However, caution should be exercised noting the effect of the various authorities such as Bravo v R [2015] NSWCCA 302 where Hulme J (Beazley P, Johnson J agreeing) said at [42]: As was observed in R v Gavel : "[97] … It is erroneous to attempt to rank forms of sexual…
KAB v R [2015] NSWCCA 55
Citation 6 (Para 26)

…victim pain on a number of occasions. On the issue of the possibility of pregnancy the Crown draws the court’s attention to the decision of KAB v R [2015] NSWCCA 55, where Wilson J (Ward JA (as her Honour then was), Simpson J (as her Honour then was making additional comments) said at [85]-[86]:…
EG v R [2015] NSWCCA 21
Citation 7 (Para 42)

…“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: ‘General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually a…
R v Tuala [2015] NSWCCA 8
Citation 8 (Para 34)

…ver without deprecating the contents of those statements or the effect of the offending on the victims, given the effect of the decision of R v Tuala [2015] NSWCCA 8 I cannot use those statements to make a finding as to any factor of aggravation. Be that as it may, both offences for which the offender appears for…
Simpson v R [2014] NSWCCA 23
Citation 9 (Para 54)

…s to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].”…
Doe v R [2013] NSWCCA 248
Citation 10 (Para 54)

…he objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].”…
Bugmy v The Queen [2013] HCA 37
Citation 11 (Para 44)

…Given these matters I am satisfied that the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened, reducing to some extent the moral culpability of the offender. Whilst I have no difficulty with the fact those factors are enlivened they are not present to the exten…
R v Oloitoa [2007] NSWCCA 177
Citation 12 (Para 16)

…h is plain from authorities which deal with fellatio involving ejaculation into the victim’s mouth: R v MS [2005] NSWCCA 322 at [16]; R v Oloitoa [2007] NSWCCA 177. Even without the risk of pregnancy ejaculation into a victim’s body is an act which adds to the degradation of the victim, and can heighten the overall…
R v MS [2005] NSWCCA 322
Citation 13 (Para 16)

…ing the gravity of an offence. That much is plain from authorities which deal with fellatio involving ejaculation into the victim’s mouth: R v MS [2005] NSWCCA 322 at [16]; R v Oloitoa [2007] NSWCCA 177. Even without the risk of pregnancy ejaculation into a victim’s body is an act which adds to the degradation of th…
Cameron v the Queen [2002] HCA 6
Citation 14 (Para 4)

…r being prepared to facilitate the course of justice. That expression is usually reserved for Commonwealth offending – see e.g. Cameron v The Queen (1999) 209 CLR 339 but see also Xiao v R [2018] NSWCCA 4. As I observed at the sentence hearing, to do as submitted by counsel would be double-counting. The numerical dis…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v GP [2019] NSWDC 493
Hearing dates:	6 September 2019
Date of orders:	16 September 2019
Decision date:	16 September 2019
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced to imprisonment – see [67] and [68]
Catchwords:	Crimes - unlawful sexual relationship with a child – assault with act of indecency on a child – plea of guilty at arraignment Crimes – sentencing – moral culpability - remorse
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Cameron v The Queen (1999) 209 CLR 339 Xiao v R [2018] NSWCCA 4 KAB v R [2015] NSWCCA 55 Bugmy v The Queen [2013] HCA 37 MC v R [2017] NSWCCA 316 Mills v R [2017] NSWCCA 87 R v Burchell (1987) 34 A Crim R 148 R v Muldoon unrep. NSWCCA 13.12.1990 R v SAG (2004) 147 A Crim R 301 R v Tuala [2015] NSWCCA 8 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	GP (Offender) Director of Public Prosecutions (Crown)
Representation:	Counsel: Mr Scragg (for the Offender) Solicitors: Mr A Dixon (for the Crown)
File Number(s):	2017/281818, 2018/74075
Publication restriction:	The court reminds all concerned that the relevant legislation provides that there must be no publication of the names of the complainants or anything that might identify them. For this reason given the familial relationship the name of the offender has been initialised.