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R v James Nicholas Kontaxis

R v James Nicholas Kontaxis

Case [2016] NSWDC 199 2 September 2016

Sexual Offences

Child Protection

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v James Nicholas Kontaxis [2016] NSWDC 199
Hearing dates: 5 August 2016
Decision date: 02 September 2016
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full time custodial sentence. For orders see [86]

Catchwords: Sexual multiple offences intercourse with child between 10 and 14 years; aggregate sentence. Lifting of suppression order.
Legislation Cited: Court Suppression and Non‑Publication Orders Act 2010
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Atkar v R [2015] NSWCCA 123
JM v R (2014) 246 ACrimR 528
McIntosh v R [2015] NSWCCA 184
Mill v The Queen (1988) 166 CLR 59
MLP v R (2006) 164 ACrimR 93
Panetta v R [2016] NSWCCA 85
Pearce v R (1998) 194 CLR 610
RJA v R [2008] NSWCCA 137
R v AJP (2004) 150 ACrimR 575
R v Bavadra (2000) 115 ACrimR 152
R v Caldwell [2016] NSWCCA 55
R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
R v Dent (unreported, NSWCCA 14 March 1991)
R v DJM [2013] NSWCCA 101
R v Dodd (1991) 57 ACrimR 349
R v Ellis (1986) 6 NSWLR 603
R v Gavel [2014] NSWCCA 56
R v Hammond [2008] NSWCCA 138
R v McClymont, unreported, 17 December 1992, NSWCCA
R v PGM (2008) 187 ACrimR 152
R v Rae [2013] NSWCCA 9
R v Sea, unreported, 13 August 1990 NSWCCA
R v Van Ryn [2016] NSWCCA 1
R v Spiers [2008] NSWCCA 107
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
James Nicholas Kontaxix (Offender)
Representation: Counsel:
B Queenan (Crown Prosecutor)
B Green (For the Offender)

File Number(s): 15/10523
Publication restriction: Nil

REMARKS ON SENTENCE

On 23 May 2015, the offender entered pleas of guilty to the following Counts on the Indictment: Counts 2, 3, 4, 5, 6 and 9.
Each of the Counts were offences pursuant to s 66C(2) of the Crimes Act 1900, namely, that the offender had sexual intercourse with RK, a child then above the age of 10 and under the age of 14 years, namely, 12 or 13 years of age, in circumstances of aggravation, namely, RK being under the authority of the offender.
All of the offences took place between 1 April 2004 and 1 March 2005. The offender is the step-father of the complainant, RK, who is now 24 years of age.
The offender has also asked that the following offences be taken into account on a Form 1: Counts 1, 7, 8 and 10. Each of those offences are pursuant to s 61M(1) of the Crimes Act 1900, being aggravated indecent assaults which took place during the same period of time.
The maximum penalty for the relevant offences at the relevant time, were as follows:

Section 66C(2) – sexual intercourse child under 16 (under authority) – 10 years imprisonment. There was no standard non-parole period for those offences which occurred between December 2003 and March 2005.

Section 61M(1) – aggravated indecent assault – 7 years imprisonment. At the relevant time,…

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 James Nicholas Kontaxis

Details

AGLC: R v James Nicholas Kontaxis [2016] NSWDC 199
Case: [2016] NSWDC 199
Decision Date: 02 September 2016

CaseChat Overview and Summary

The case of R v James Nicholas Kontaxis involved the defendant who was charged with multiple offences of sexual intercourse with a child between the ages of 10 and 14 years. The case was heard in the relevant court, which imposed a full-time custodial sentence on the defendant. The matter before the court involved the sentencing of the defendant, who had pleaded guilty to the charges. The court also considered the lifting of a suppression order that was in place.

The primary legal issues the court had to address were the appropriate sentence for the defendant's multiple offences, and the implications of lifting the suppression order. In determining the sentence, the court considered the nature and circumstances of the offences, the defendant's background, and the need to protect the community and the victim. The court also had to assess whether lifting the suppression order would be in the public interest.

In reaching its decision, the court thoroughly examined the evidence and submissions presented by both parties. The court considered the gravity of the offences, the defendant's criminal history, and the need for deterrence and rehabilitation. The court found that the offences were of a serious nature and warranted a custodial sentence. The court also determined that lifting the suppression order would not be in the public interest, given the sensitive nature of the offences and the need to protect the victim's identity.

The court imposed a full-time custodial sentence on the defendant, reflecting the seriousness of the offences and the need to protect the community. The court further determined that the suppression order should remain in place to protect the victim's identity. The final orders of the court included the custodial sentence for the defendant, and the continuation of the suppression order.

Orders

Orders of the court

Full time custodial sentence. For orders see [86]

Background

Background to the litigation

Full text does not contain this section.

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 James Nicholas Kontaxis [2016] NSWDC 199

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 21 of 21 shown

R v Holder
[2019] SASCFC 73

…“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not in…
Panetta v R
[2016] NSWCCA 85 Para 50

…statement on 12 January 2015. In those circumstances, the offender was entitled to a discount for his voluntary disclosure, relying on Panetta v R [2016] NSWCCA 85 per Adams J at [33] – [34], and [48], pursuant to the principle in R v Ellis (1986) 6 NSWLR 603.…
R v Caldwell
[2016] NSWCCA 55

…016] NSWCCA 85 Pearce v R (1998) 194 CLR 610 RJA v R [2008] NSWCCA 137 R v AJP (2004) 150 ACrimR 575 R v Bavadra (2000) 115 ACrimR 152 R v Caldwell [2016] NSWCCA 55 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Dent (unreported, NSWCCA 14 March 1991) R v DJM [2013] NSWCCA 101 R v Dodd (1991) 57 ACrimR 349 R v Elli…
R v Van Ryn
[2016] NSWCCA 1 Para 81

…ence must be “just and appropriate” to the totality of the offending behaviour – see Mill v The Queen (1988) 166 CLR 59 at [63]. In R v Van Ryn [2016] NSWCCA 1, the court had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the total…
Mcintosh v R
[2015] NSWCCA 184 Para 84

…fence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process – see McIntosh v R [2015] NSWCCA 184 at [135]. It is clear that in indicating the sentences, there is no requirement to specify non-parole periods unless the offence is one for which a sta…
Aktar v R
[2015] NSWCCA 123 Para 1

…That the offences occurred in the home of the victim, pursuant to s 21A(2)(eb), pursuant to Atkar v R [2015] NSWCCA 123 per Wilson J at [63].…
R v Gavel
[2014] NSWCCA 56 Para 30

…ch conduct, referring to R v Dent (unreported, NSWCCA 14 March 1991). That such damage may be profound is beyond argument. More recently in R v Gavel [2014] NSWCCA 56 at [110], the court stated:…
R v CMB
[2014] NSWCCA 5 Para 92

…rt has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37, Barones…
SW v R
[2013] NSWCCA 255 Para 52

…f not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, whi…
DJM v R
[2013] NSWCCA 101 Para 33

…was more serious where the breach was a family member, due to the helplessness of children against sexual attacks by parents, relying on R v DJM [2013] NSWCCA 101.…
R v Rae
[2013] NSWCCA 9 Para 83

…ch count. It is clear that the aggregation of sentences pursuant to s 53A must reflect some accumulation of the indicative head sentences – R v Rae [2013] NSWCCA 9, and JM v R, supra, per R A Hulme J (with whom Hoeben CJ at CL and Adamson J agreed) at [39]…
Clarkson v The Queen
[2011] VSCA 157

…a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157.”…
R v G
[2008] UKHL 37 Para 52

…CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity can…
Hammond v R
[2008] NSWCCA 138 Para 38

…sessment of culpability, as it must have been established that such a condition contributed to the commission of the offences, relying on R v Hammond [2008] NSWCCA 138 at [30] to [36]. Whilst the report of Ms Lucas opined that the offender was suffering from a depressive disorder at the time of the offences, that re…
RJA v R
[2008] NSWCCA 137 Para 3

…mplainant is significantly below the maximum provided by the particular offence, that is a factor which may be taken into account, relying on RJA v R [2008] NSWCCA 137.…
R v Spiers
[2008] NSWCCA 107 Para 37

…g silent in the hope that the offences would not be discovered. Therefore a reduced sentence for that reason was inappropriate, relying on R v Spiers [2008] NSWCCA 107.…
Maxwell v R
[2007] NSWCCA 304 Para 3

…avating features present. Generally speaking, the more circumstances of aggravation are present, the more serious the offence, relying on Maxwell v R [2007] NSWCCA 304 at [26]; R v Huynh [2005] NSWCCA 220 at [30], which authorities refer to offences pursuant to sections 112 and 113 of the Crimes Act .”…
Cahyadi v R
[2007] NSWCCA 1 Para 82

…public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]:…
R v Huynh
[2005] NSWCCA 220 Para 3

…peaking, the more circumstances of aggravation are present, the more serious the offence, relying on Maxwell v R [2007] NSWCCA 304 at [26]; R v Huynh [2005] NSWCCA 220 at [30], which authorities refer to offences pursuant to sections 112 and 113 of the Crimes Act .”…
Pearce v The Queen
[1998] HCA 57 Para 39

…the sentences to be imposed for individual counts” – R v Bavadra (2000) 115 ACrimR 152. Referring to the High Court’s decision in Pearce v R (1998) 194 CLR 610, an appropriate sentence had to take into account questions of accumulation, concurrence or totality. The Crown conceded that it was an appropriate case to s…
Mill v The Queen
[1988] HCA 70 Para 81

…I note that any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour – see Mill v The Queen (1988) 166 CLR 59 at [63]. In R v Van Ryn [2016] NSWCCA 1, the court had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, wit…

Legislation cited in this decision · 4

Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention (from Para 27)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 29)
Crimes Act 1900 (ACT)
1 mention (from Para 2)
Publication Orders Act 2010 (NSW)
1 mention (from Para 25)

Medium Neutral Citation:	R v James Nicholas Kontaxis [2016] NSWDC 199
Hearing dates:	5 August 2016
Decision date:	02 September 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For orders see [86]
Catchwords:	Sexual multiple offences intercourse with child between 10 and 14 years; aggregate sentence. Lifting of suppression order.
Legislation Cited:	Court Suppression and Non‑Publication Orders Act 2010 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Atkar v R [2015] NSWCCA 123 JM v R (2014) 246 ACrimR 528 McIntosh v R [2015] NSWCCA 184 Mill v The Queen (1988) 166 CLR 59 MLP v R (2006) 164 ACrimR 93 Panetta v R [2016] NSWCCA 85 Pearce v R (1998) 194 CLR 610 RJA v R [2008] NSWCCA 137 R v AJP (2004) 150 ACrimR 575 R v Bavadra (2000) 115 ACrimR 152 R v Caldwell [2016] NSWCCA 55 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Dent (unreported, NSWCCA 14 March 1991) R v DJM [2013] NSWCCA 101 R v Dodd (1991) 57 ACrimR 349 R v Ellis (1986) 6 NSWLR 603 R v Gavel [2014] NSWCCA 56 R v Hammond [2008] NSWCCA 138 R v McClymont, unreported, 17 December 1992, NSWCCA R v PGM (2008) 187 ACrimR 152 R v Rae [2013] NSWCCA 9 R v Sea, unreported, 13 August 1990 NSWCCA R v Van Ryn [2016] NSWCCA 1 R v Spiers [2008] NSWCCA 107
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) James Nicholas Kontaxix (Offender)
Representation:	Counsel: B Queenan (Crown Prosecutor) B Green (For the Offender)
File Number(s):	15/10523
Publication restriction:	Nil