R v I .D and O. N - [2007] NSWDC 51

CITATION: R v I .D. & O. N. [2007] NSWDC 51

HEARING DATE(S): 15/08/06; 26/10/08; 15/12/06

JUDGMENT DATE:
25 January 2007

EX TEMPORE JUDGMENT DATE: 1 June 2002

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: O.N. convicted on 11 counts. Sentenced to overall sentence of 12 years with NPP 4years 2months 18days [195]; I.D. convicted on 3 counts. Sentenced to overall sentence of 9 years 11months with NPP 4 years [210]

CATCHWORDS: Criminal Law - juvenile offenders - home invasion - robbery in circumstances of aggravation - sexual offences in circumstances of aggravation - single mother - 5 year old son threatened - objective seriousness - sentencing according to law - standard non-parole period - mid range of seriousness - victim impact statement - subjective features - sexual offenders' course at Baxter JDC - appropriate relationship between minimum and additional terms when sentencing youthful offenders.

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987; s. 6, 18, 19.
Crimes Act 1900 (NSW) s61JA.
Crimes (Sentencing Procedure) Act 1999 ; s32, 54A, 54B.

CASES CITED: The Queen v Gladue [1999] 1 SCR 688 at [80].
R v Cuthbert CCA NSW (1967) 2 NSWLR 329.
R v Rushby [1977] 1 NSWLR 594.
R v Hayes [1984] 1 NSWLR 740.
R v Gebrail, unreported, NSW CCA 18-Nov 1994
R v Hartikainen unreported NSW CCA 8 June 1993.
R v May (1938) 55 WN (NSW) 29
WKR (1993) 32 NSWLR 447
R V Way (2004) 60 NSWLR 168 at [85] – [86]
R v Pham
R v Hearne 124 A Crim R 451 at 461 [39]
Roper v Simmons 543 U.S. 2005 1 at pp15-16
Attorney General Application under s37 Crimes (Sentencing Procedure) Act 1999; No. 1 of 2002 (2004) 61 NSWLR 305

PARTIES: Regina
I .D. - a juvenile
O.N. - a juvenile

FILE NUMBER(S): 06/21/0058; 06/21/0096

COUNSEL: Crown: Mr A Clout
O.N.: C. Salsone
I.D.: H.F. White

SOLICITORS:
M/s J. Davis, Solicitor for Public Prosecutions.
Mr T. Keenan, Legal Aid Commission

JUDGMENT
His Honour: This sentence will take probably more than an hour and a half to read. It is necessary for these things to be said so that the courts understand, and hopefully you will understand why these sentences are being passed.

Section 11 of the Children (Criminal Proceedings) Act 1987 applies to these proceedings and the name of each accused is not to be published, nor is anything to be published which would disclose their identity. Section 291 of the Criminal Procedure Act 1986 also applies to these proceedings. The name of the complainant is not to be published, nor is anything to be published which would disclosed her identity. Likewise the name of the complainant’s son is not to be published, nor is anything to be published which would disclose his identity.

Remarks on Sentence
1 Attitudes vary among the community as to what, of a very wide range of activities and ambience, is an acceptable expression of sexual interest by one party towards another. Usually…

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.

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Details

Case: [2007] NSWDC 51
Decision Date: 1 June 2002

CaseChat Overview and Summary

In the matter of R v I.D and O.N, the defendants were charged with various offences including home invasion, robbery in circumstances of aggravation, and sexual offences in circumstances of aggravation. The court was tasked with determining the appropriate sentences for the two juvenile offenders. The case involved a single mother and her five-year-old son who were threatened during the offences, and the court had to consider the objective seriousness of the crimes, the sentencing according to law, and the standard non-parole period. The victim impact statement and the subjective features of the case also played a significant role in the sentencing process. Furthermore, the court had to consider the appropriate relationship between minimum and additional terms when sentencing youthful offenders.

The legal issues that the court was required to decide included the objective seriousness of the crimes, the sentencing according to law, the standard non-parole period, and the appropriate relationship between minimum and additional terms when sentencing youthful offenders. The court had to consider the circumstances of aggravation, the impact of the crimes on the victims, and the need to provide a just outcome for both the victims and the offenders. Additionally, the court had to balance the need for punishment with the need for rehabilitation, particularly given the youth of the offenders.

The court found that the crimes were of significant seriousness, taking into account the circumstances of aggravation, the threat to the victims, and the impact on the community. The court determined that the appropriate standard non-parole period for the offences was in the mid-range of seriousness. The court also considered the subjective features of the case, including the victim impact statement, and the completion of a sexual offenders' course at Baxter Juvenile Detention Centre by one of the offenders. In determining the appropriate sentences, the court balanced the need for punishment with the need for rehabilitation, taking into account the youth of the offenders. The court concluded that the appropriate sentences were an overall sentence of 12 years with a non-parole period of 4 years, 2 months, and 18 days for O.N, and an overall sentence of 9 years and 11 months with a non-parole period of 4 years for I.D.

The court ordered that O.N be convicted on 11 counts and sentenced to an overall sentence of 12 years with a non-parole period of 4 years, 2 months, and 18 days. The court also ordered that I.D be convicted on 3 counts and sentenced to an overall sentence of 9 years and 11 months with a non-parole period of 4 years. The court's decision took into account the objective seriousness of the crimes, the sentencing according to law, the standard non-parole period, and the appropriate relationship between minimum and additional terms when sentencing youthful offenders.

Orders

Orders of the court

O.N. convicted on 11 counts. Sentenced to overall sentence of 12 years with NPP 4years 2months 18days [195]; I.D. convicted on 3 counts. Sentenced to overall sentence of 9 years 11months with NPP 4 years [210]

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v I .D. & O. N. [2007] NSWDC 51
HEARING DATE(S):	15/08/06; 26/10/08; 15/12/06
JUDGMENT DATE:	25 January 2007
EX TEMPORE JUDGMENT DATE:	1 June 2002
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	O.N. convicted on 11 counts. Sentenced to overall sentence of 12 years with NPP 4years 2months 18days [195]; I.D. convicted on 3 counts. Sentenced to overall sentence of 9 years 11months with NPP 4 years [210]
CATCHWORDS:	Criminal Law - juvenile offenders - home invasion - robbery in circumstances of aggravation - sexual offences in circumstances of aggravation - single mother - 5 year old son threatened - objective seriousness - sentencing according to law - standard non-parole period - mid range of seriousness - victim impact statement - subjective features - sexual offenders' course at Baxter JDC - appropriate relationship between minimum and additional terms when sentencing youthful offenders.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987; s. 6, 18, 19. Crimes Act 1900 (NSW) s61JA. Crimes (Sentencing Procedure) Act 1999 ; s32, 54A, 54B.
CASES CITED:	The Queen v Gladue [1999] 1 SCR 688 at [80]. R v Cuthbert CCA NSW (1967) 2 NSWLR 329. R v Rushby [1977] 1 NSWLR 594. R v Hayes [1984] 1 NSWLR 740. R v Gebrail, unreported, NSW CCA 18-Nov 1994 R v Hartikainen unreported NSW CCA 8 June 1993. R v May (1938) 55 WN (NSW) 29 WKR (1993) 32 NSWLR 447 R V Way (2004) 60 NSWLR 168 at [85] – [86] R v Pham R v Hearne 124 A Crim R 451 at 461 [39] Roper v Simmons 543 U.S. 2005 1 at pp15-16 Attorney General Application under s37 Crimes (Sentencing Procedure) Act 1999; No. 1 of 2002 (2004) 61 NSWLR 305
PARTIES:	Regina I .D. - a juvenile O.N. - a juvenile
FILE NUMBER(S):	06/21/0058; 06/21/0096
COUNSEL:	Crown: Mr A Clout O.N.: C. Salsone I.D.: H.F. White
SOLICITORS:	M/s J. Davis, Solicitor for Public Prosecutions. Mr T. Keenan, Legal Aid Commission