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R v Guevara

R v Guevara

Case [2023] NSWDC 655 5 October 2023

Criminal Liability

Aggravated & Exemplary Damages

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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:
BT v R [2010] NSWCCA 267
Cahyadi v R [2007] NSWCCA 1
Campbell v R [2014] NSWCCA 102
Christov v R [2009] NSWCCA 168
Corby v R [2010] NSWCCA 146
Decision restricted [2023] NSWCCA 10
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.
GSH v R; R v GSH [2009] NSWCCA 214
LB v R [2019] NSWCCA 151
MAK v R [2006] NSWCCA 381
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 Doff [2005] NSWCCA 119
R v Gavel [2014] NSWCCA 56
R v Herring (1956) 73 WN (NSW) 203
R v KNL [2005] NSWCCA 260
R v NJK [2011] NSWCCA 151
R v R E [2023] NSWCCA 184
R v Van Ryn [2016] NSWCCA 1
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 13
RJA v R [2008] NSWCCA 13
Ryan v The Queen [20011] HCA 21; (2001) 206 CLR 267
Tepania v R [20018] NSWCCA 247
Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

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)

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 Guevara

Details

AGLC: R v Guevara [2023] NSWDC 655
Case: [2023] NSWDC 655
Decision Date: 05 October 2023

CaseChat Overview and Summary

The defendant, Guevara, was convicted of multiple counts of indecent assault against children over the age of 10 and under 16. The case was heard in the Supreme Court of New South Wales. Guevara's appeal against his sentence focused on the severity of the aggregate term of imprisonment and the non-parole period.

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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Citations

AGLC Citation

R v Guevara [2023] NSWDC 655

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 28 of 28 shown

R v RE
[2023] NSWCCA 184 Para 27

…erstanding by the labels suggested by the parties. Rather, one has to look at the particulars of the case not the labels or descriptors used: R v R E [2023] NSWCCA 184 at [35].…
KM v The King
[2023] NSWCCA 10 Para 28

…ed that: “Fine distinctions based on artificial segmentation are in my respectful opinion unnecessary; [and] apt to confuse”: Decision restricted [2023] NSWCCA 10 at [52] (Button JA).…
Owen v R
[2022] NSWCCA 214 Para 25

…s, Judges “are obliged to resolve the disputed issue as to where this particular offence fell on the spectrum of objective seriousness”: Owen v R [2022] NSWCCA 214 at [49].…
LB v R
[2019] NSWCCA 151 Para 49

…y and the standard non-parole periods was described by judges of the Supreme Court as “absurd” or “curious”: BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151. However, another court noted, speaking of s 61M(2): "Nevertheless, an eight year standard non parole period has been prescribed by the Legislature and the c…
Director of Public Prosecutions (Cth) v Beattie
[2017] NSWCCA 301 Para 86

…really depends on the perspective of the observer, victim or offender, community or appeal court: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.…
R v Van Ryn
[2016] NSWCCA 1 Para 1

…The actual character of the assault: R v Van Ryn [2016] NSWCCA 1.…
R v Campbell
[2014] NSWCCA 102 Para 30

…That said, assessment of objective seriousness of each offence is, and has always been, a critical component of the sentencing process: Campbell v R [2014] NSWCCA 102 at [27]; Markarian . I trust that my assessment of the relative offences will be able to be readily apparent from these sentencing remarks.…
R v Gavel
[2014] NSWCCA 56 Para 31

…physical and psychological harm taken to be caused by premature sexual activity”: Clarkson v R [2011] VSCA 152, cited with approval in R v Gavel [2014] NSWCCA 56. That is one important reason for the high maximum penalties fixed for offences now before me and the standard non-parole periods.…
Muldrock v The Queen
[2011] HCA 39 Para 18

…ective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. However, as the High Court in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 made clear, in doing so, I cannot engage i…
R v NJK
[2011] NSWCCA 151 Para 49

…Nevertheless, an eight year standard non parole period has been prescribed by the Legislature and the courts must give effect to it": R v NJK [2011] NSWCCA 151 at [40].…
Clarkson v R
[2011] VSCA 152 Para 31

…hibition is “intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity”: Clarkson v R [2011] VSCA 152, cited with approval in R v Gavel [2014] NSWCCA 56. That is one important reason for the high maximum penalties fixed for offences now before me and the…
BT v R
[2010] NSWCCA 267 Para 49

…between the maximum penalty and the standard non-parole periods was described by judges of the Supreme Court as “absurd” or “curious”: BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151. However, another court noted, speaking of s 61M(2): "Nevertheless, an eight year standard non parole period has been prescribed by…
Corby v R
[2010] NSWCCA 146 Para 2

…The degree of physical contact involved: Corby v R [2010] NSWCCA 146 at [72].…
GSH v R; R v GSH
[2009] NSWCCA 214 Para 4

…Whether there was skin-on-skin contact, and the degree of that skin-on-skin contact and the nature of that skin-on-skin contact: GSH v R; R v GSH [2009] NSWCCA 214.…
Christov v R
[2009] NSWCCA 168 Para 2

…. It will be taken into account on sentence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A; R v Doff [2005] NSWCCA 119 at [58(c)]; Christov v R [2009] NSWCCA 168.…
Ayton, Darren Lee v The Queen
[2008] NSWCCA 13 Para 6

…age range encompassed by the offence; “The younger the child the more serious the offence”: R v KNL [2005] NSWCCA 260 at [42] (Latham J); RJA v R [2008] NSWCCA 13 at [13].…
Cahyadi v R
[2007] NSWCCA 1 Para 81

…Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (McHugh J); Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]; Cahyadi v R [2007] NSWCCA 1.…
R v MAK
[2006] NSWCCA 381 Para 85

…ence increases. A sentence of two years has a greater impact punitively than one: R v Clinch (1994) 72 A Crim R 301 at [306], approved in MAK v R [2006] NSWCCA 381.…
R v KNL
[2005] NSWCCA 260 Para 6

…I have to consider the age relative to the age range encompassed by the offence; “The younger the child the more serious the offence”: R v KNL [2005] NSWCCA 260 at [42] (Latham J); RJA v R [2008] NSWCCA 13 at [13].…
Markarian v The Queen
[2005] HCA 25 Para 18

…reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. However, as the High Court in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 made clear, in doing so, I cannot engage in a staged approach to sentencing.…
R v Doff
[2005] NSWCCA 119 Para 2

…s facilitated by the conduct of the defence. It will be taken into account on sentence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A; R v Doff [2005] NSWCCA 119 at [58(c)]; Christov v R [2009] NSWCCA 168.…
R v Way
[2004] NSWCCA 131 Para 21

…As the Court of Criminal Appeal in New South Wales made clear in Regina v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [131] it:…
Regina v Salazar
[2004] NSWCCA 13

…[2023] NSWCCA 184 R v Van Ryn [2016] NSWCCA 1 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 13 RJA v R [2008] NSWCCA 13 Ryan v The Queen [20011] HCA 21; ( 2001) 206 CLR 267 Tepania v R [20018] NSWCCA 247 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 Texts Cited: W Wan, S Poynton and D Weatherburn, “Does Paro…
Weininger v The Queen
[2003] HCA 14

…; ( 2001) 206 CLR 267 Tepania v R [20018] NSWCCA 247 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 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…
Ryan v The Queen
[2001] HCA 21 Para 71

…As Justice McHugh J said in Ryan v The Queen [20011] HCA 21; ( 2001) 206 CLR 267 at [23]:…
Gray v Motor Accident Commission
[1998] HCA 70 Para 81

…st and appropriate to the totality of [Guevara's] crimes”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (McHugh J); Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]; Cahyadi v R [2007] NSWCCA 1.…
Postiglione v the Queen
[1997] HCA 26 Para 81

…o structure the sentences such that the overall sentence is “just and appropriate to the totality of [Guevara's] crimes”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (McHugh J); Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]; Cahyadi v R [2007] NSWCCA 1.…
Mill v The Queen
[1988] HCA 70 Para 81

…ate to the totality of [Guevara's] crimes”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (McHugh J); Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]; Cahyadi v R [2007] NSWCCA 1.…

Legislation cited in this decision · 4

Crimes (Administration of Sentences) Act 1999 (NSW)
135 2 mentions (from Para 94)
Crimes (Sentencing Procedure) Act 1999 (NSW)
22A 2 mentions (from Para 2)
Crimes Act 1900 (ACT)
61M(1) 2 mentions
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention

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:	BT v R [2010] NSWCCA 267 Cahyadi v R [2007] NSWCCA 1 Campbell v R [2014] NSWCCA 102 Christov v R [2009] NSWCCA 168 Corby v R [2010] NSWCCA 146 Decision restricted [2023] NSWCCA 10 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301. GSH v R; R v GSH [2009] NSWCCA 214 LB v R [2019] NSWCCA 151 MAK v R [2006] NSWCCA 381 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 Doff [2005] NSWCCA 119 R v Gavel [2014] NSWCCA 56 R v Herring (1956) 73 WN (NSW) 203 R v KNL [2005] NSWCCA 260 R v NJK [2011] NSWCCA 151 R v R E [2023] NSWCCA 184 R v Van Ryn [2016] NSWCCA 1 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 13 RJA v R [2008] NSWCCA 13 Ryan v The Queen [20011] HCA 21; (2001) 206 CLR 267 Tepania v R [20018] NSWCCA 247 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629
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)