District Court
New South Wales
Medium Neutral Citation: R v Guevara [2023] NSWDC 655 Hearing dates: 5 October 2023 Date of orders: 5 October 2023 Decision date: 05 October 2023 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate imprisonment sentence of 11 years with a non-parole period of 7 years 2 months
Catchwords: CRIME — Sexual offences — Indecent assault — Circumstances of aggravation
CRIME — Child sex offences — Indecent assault >16 — Circumstances of aggravation — Sexual intercourse with child >10 <14
SENTENCING — Aggravating factors — Breach of trust — Multiple victims
SENTENCING — Guidelines for sentencing — Role of guidelines — Administration of justice was facilitated by the conduct of the defence
SENTENCING — Mitigating factors — Good character — No record of previous convictions
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Sentence after guilty verdicts at trial — Delay — General principles — Moral culpability — Multiple offences — Accumulation, concurrency and totality — Aggregate sentences — Crushing sentence — Objective seriousness — Purposes of sentencing
SENTENCING — Sentencing procedure —Instinctive synthesis — Disputed facts — High Risk Offender warning given
SENTENCING — Subjective considerations on sentence — Significant childhood trauma — Experienced war and war related violence —Refugee
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act1999 (NSW)
Cases Cited: Campbell v R [2014] NSWCCA 102
Christov v R [2009] NSWCCA 168
Decision restricted [2023] NSWCCA 10
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.
GSH v R; R v GSH [2009] NSWCCA 214
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Clinch (1994) 72 A Crim R 301
R v Herring (1956) 73 WN (NSW) 203
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 13
Ryan v The Queen [20011] HCA 21; (2001) 206 CLR 267
Tepania v R [20018] NSWCCA 247
Texts Cited: W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497
Category: Sentence Parties: Miguel Enoc Guevara (the offender)
Public Prosecutions (NSW) (Crown)Representation: Counsel:
C Doosey (for the offender)
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- AGLC
- R v Guevara [2023] NSWDC 655
- Case
- [2023] NSWDC 655
- Decision Date
CaseChat Overview and Summary
The court was required to consider whether the sentence was excessive and whether it adequately reflected the aggravating and mitigating factors in the case. Aggravating factors included the breach of trust, the multiple victims, and the objective seriousness of the offences. Mitigating factors included Guevara's good character and lack of a prior criminal record, as well as his significant childhood trauma, experiences of war, and status as a refugee.
The court found that the sentence was appropriate, taking into account the guidelines for sentencing and the purposes of sentencing, which include deterrence, retribution, rehabilitation, and denunciation. The court noted that Guevara's conduct had facilitated the administration of justice and that the aggregate sentence reflected the cumulative nature of the offences. The court also considered the High Risk Offender warning given to Guevara and the principles of totality in sentencing. The appeal was dismissed.
The court ordered that the aggregate imprisonment sentence of 11 years with a non-parole period of 7 years 2 months be upheld.
Orders
Orders of the court
Aggregate imprisonment sentence of 11 years with a non-parole period of 7 years 2 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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