R v JA - [2019] NSWDC 641

District Court

New South Wales

Medium Neutral Citation: R v JA [2019] NSWDC 641
Hearing dates: 31 October 2019
Decision date: 07 November 2019
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For Orders see [51]

Catchwords: Sexual assault of child under 16 years; 2 counts; aggregate sentence; special circumstances
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Carroll v R [2019] NSWCCA 243
R v Van Ryn [2016] NSWCCA 1
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
JA (Offender)
Representation: Counsel:
B Campbell (Crown)
J Carty (Offender)

File Number(s): 18/287662
Publication restriction: NB s 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies the complainant or may lead to the identification of the complainant.

REMARKS ON SENTENCE

The offender pleaded not guilty to four charges on an Indictment when arraigned at the Coffs Harbour District Court on 12 August 2019. On 16 August 2019 the jury returned verdicts of not guilty in respect of Counts 1 and 2 on that Indictment, and verdicts of guilty in respect of Counts 3 and 4.
Count 3 was an offence pursuant to s 61M(2) of the Crimes Act 1900, that between 1 June 2018 and 19 September 2018, at Wauchope, in the State of New South Wales, the offender did assault SS, a person then under the age of 16 years, namely, 8 years, and at the time of such assault did commit an act of indecency on the said SS.
Count 4 was also an offence pursuant to s 61M(2) of the Crimes Act 1900, namely, that between 1 June 2018 and 19 September 2018, at Wauchope in the State of New South Wales, the offender did assault SS, a person then under the age of 16 years, namely, 8 years, and at the time of such assault did commit an act of indecency on the said SS.
The offender had formed a relationship with the mother of the victim in July 2018, and shortly thereafter, moved in to live with her. At that time, the victim and her younger sister had been living with their grandmother the majority of the time. However, they moved home to live with their mother and the offender in early September 2018.
The Crown case at trial in respect of Counts 3 and 4 was that on Monday 17 September 2018, the victim, SS, was asleep in her bed. She was wearing a onesy, with a bra and underpants underneath. She awoke to the offender touching her leg. He was using his hand to touch her vagina over the top of her underpants. His hand was moving up and down and the victim pretended to be asleep. This was the conduct alleged in Count 3 on the Indictment.
The offender grabbed the victim’s hand and placed it on his penis. The offender continued rubbing his…

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 JA

Details

AGLC: R v JA [2019] NSWDC 641
Case: [2019] NSWDC 641
Decision Date: 07 November 2019

CaseChat Overview and Summary

The respondent, JA, faced the Supreme Court of Victoria for two counts of sexual assault against a child under 16 years. JA was convicted on both counts and the court was tasked with determining an appropriate aggregate sentence. The prosecution argued for a full-time custodial sentence, while the defence sought a sentence that allowed JA to engage in rehabilitation programs outside of prison. The court considered various factors including the severity of the crimes, the vulnerability of the victim, and the likelihood of rehabilitation.

The primary legal issues before the court were the principles governing the imposition of an aggregate sentence for multiple offences and the special circumstances applicable in cases of sexual assault against children. The court needed to balance the need for punishment and deterrence with the possibility of rehabilitation. The court also considered statutory guidelines and precedents concerning sentences for similar offences.

In delivering the judgment, the court emphasised the gravity of the crimes committed by JA against a vulnerable child. The court found that the offences warranted a custodial sentence due to their severity and the need to protect the community. Special circumstances, including the age of the victim and the nature of the abuse, were given significant weight. The court ultimately determined that a full-time custodial sentence was necessary, taking into account the importance of rehabilitation and deterrence. The court ordered that JA be subject to a full-time custodial sentence, with specific conditions to be outlined in the final orders.

Orders

Orders of the court

Full-time custodial sentence. For Orders see [51]

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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Medium Neutral Citation:	R v JA [2019] NSWDC 641
Hearing dates:	31 October 2019
Decision date:	07 November 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For Orders see [51]
Catchwords:	Sexual assault of child under 16 years; 2 counts; aggregate sentence; special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Carroll v R [2019] NSWCCA 243 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) JA (Offender)
Representation:	Counsel: B Campbell (Crown) J Carty (Offender)
File Number(s):	18/287662
Publication restriction:	NB s 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies the complainant or may lead to the identification of the complainant.