Legal Research
Cases
R v JDS (No. 2)

R v JDS (No. 2)

Case [2022] NSWDC 103 8 April 2022

Historical child sexual offences

Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v JDS (No. 2) [2022] NSWDC 103
Hearing dates: 11 March 2022
Date of orders: 8 April 2022
Decision date: 08 April 2022
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [104].

Catchwords:
Historical child sexual offences; aggregate sentence.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:
Aryal v R [2021] NSWCCA 2
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Carrol v R [2019] NSWCCA 243
Droudis v R [2020] NSWCCA 332
Fisher v R [2008] NSWCCA 129
GP v R [2017] NSWCCA 200
Jonson v R (2016) A Crim R 268
Merkel v R [2019] NSWCCA 212
R v Cattel [2019] NSWCCA 297
R v Edwards (1996) 90 A Crim R 510
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v JJ [2019] NSWCCA 148
R v King [2009] NSWCCA 117
R v KNL [2005] NSWCCA 260
R v Mailes (2003) 142 A Crim R 353
R v T (1990) 47 A Crim R 29
R v Tangi (No 12) [2020] NSWSC 547
R v Van Ryn [2016] NSWCCA 1

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
JDS (Offender)
Representation: Counsel:
L. Lungo (Crown)
J. Ellis (Offender)

File Number(s): 2020/20534
Publication restriction: Pursuant to s 578A of the Crimes Act 1900, the publication of any material which may identify or is likely to lead to the identification of the complainants in the proceedings is prohibited.

remarks on sentence

Following a trial by Judge alone, the offender was found guilty of Counts 1 to 5 on the Indictment as follows:

Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years of age, being a person under the authority of JDS.

This was an offence pursuant to s 66C(2) of the Crimes Act 1900, and carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period prescribed.

Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years, being a person under the authority of JDS.

This was an offence pursuant to s 66C(2) of the Crimes Act 1900, which carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period prescribed.

Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, incited DSE a person then under the age of 16 years, namely, between 5 and 7 years of age, who was under the authority of JDS, to commit an act of indecency towards JDS.

This was an…

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 JDS (No. 2)

Details

AGLC: R v JDS (No. 2) [2022] NSWDC 103
Case: [2022] NSWDC 103
Decision Date: 08 April 2022

CaseChat Overview and Summary

The defendant, JDS, faced the court in a case concerning historical child sexual offences. The court was required to determine the appropriate sentence for these offences, which involved multiple victims. The case was heard in the higher court, which had jurisdiction to impose a full-time custodial sentence.

The legal issues before the court included the severity and nature of the offences, the number of victims, and the appropriate length of the custodial sentence. The court needed to consider whether the offences warranted a lengthy sentence, given their historical nature and the harm caused to the victims. Additionally, the court had to balance the need for punishment with the principles of rehabilitation and deterrence.

In reaching its decision, the court examined the evidence presented, including the impact statements from the victims and expert testimonies. The court concluded that the offences were of a serious nature and warranted a full-time custodial sentence. The court emphasised the need for deterrence and to protect the community from further harm. The court imposed a sentence that reflected the gravity of the offences and the harm caused to the victims. The specific details of the orders are outlined in the judgment at paragraph 104.

Orders

Orders of the court

Full-time custodial sentence. For orders see [104].

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v JDS (No. 2) [2022] NSWDC 103

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 20 of 20 shown

R v JDS
[2021] NSWDC 579 Para 6

…The circumstances of the offending are set out in my judgment on verdict, delivered on 27 October 2021 (see R v JDS [2021] NSWDC 579), which should be read in conjunction with these remarks on sentence. My findings of fact were set out in [67] and [278] of that judgment.…
Aryal v R
[2021] NSWCCA 2 Para 101

…sentence to be imposed involves an assessment of what is appropriate to reflect the totality of criminality in all of the offending – see Aryal v R [2021] NSWCCA 2 at [46].…
Bolin v The Queen
[2020] NSWCCA 332 Para 39

…r the offender had facilitated the administration of justice by electing to proceed to trial by way of Judge alone, the Crown referred to Droudis v R [2020] NSWCCA 332, where the court held that if a sentencing Judge had treated assistance during a trial to be a mitigating factor rather than a discount on sentence,…
R v Ross (No. 5)
[2020] NSWDC 306 Para 58

…emic, that served to reduce delays and case backlog and was therefore beneficial to the court system and to the community, relying on R v Ross (No 5) [2020] NSWDC 306. It was submitted a discount should be granted to the offender for the utilitarian value of the election.…
R v Tangi (No 12)
[2020] NSWSC 547 Para 56

…rotective custody. Also, the impact of the COVID-19 pandemic on the gaol system made his time in custody more onerous, referring to R v Tangi (No 12) [2020] NSWSC 547 and other cases.…
R v Cattell
[2019] NSWCCA 297 Para 26

…ld sexual offence in accordance with the sentencing patterns and practices at the time of sentence, not at the time of the offence. In R v Cattel [2019] NSWCCA 297 at [125], Price J observed that the sentencing court should expressly state that the offender has been sentenced in accordance with s 25AA(1) and explain…
Carroll v The Queen
[2019] NSWCCA 243 Para 27

…gs of fact set out above, including the agreed facts, and set out a number of comparative sentences, namely, Merkel v R [2019] NSWCCA 212, Carrol v R [2019] NSWCCA 243 and GP v R [2017] NSWCCA 200.…
Merkel v R
[2019] NSWCCA 212 Para 27

…e Crown referred to the findings of fact set out above, including the agreed facts, and set out a number of comparative sentences, namely, Merkel v R [2019] NSWCCA 212, Carrol v R [2019] NSWCCA 243 and GP v R [2017] NSWCCA 200.…
R v JJ
[2019] NSWCCA 148 Para 60

…nder then sought to distinguish the comparative cases referred to by the Crown and submitted that the Court of Criminal Appeal’s decision in R v JJ [2019] NSWCCA 148 will be of assistance to the court in arriving at a proportionate sentence.…
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…
GP v R
[2017] NSWCCA 200 Para 27

…luding the agreed facts, and set out a number of comparative sentences, namely, Merkel v R [2019] NSWCCA 212, Carrol v R [2019] NSWCCA 243 and GP v R [2017] NSWCCA 200.…
R v Van Ryn
[2016] NSWCCA 1 Para 99

…some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with prope…
R v Gavel
[2014] NSWCCA 56 Para 85

…In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, the Court of Criminal Appeal said at [110]:…
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; [2009]…
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; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and ps…
R v King
[2009] NSWCCA 117 Para 86

…It has long been held that sexual assault offences of their very nature cause significant harm – see R v King [2009] NSWCCA 117 at [41].…
Fisher v R
[2008] NSWCCA 129 Para 44

…arged misconduct was an isolated incident, but not so as to aggravate the offences, relying on R v Mailes (2003) 142 A Crim R 353 at [51]; Fisher v R [2008] NSWCCA 129 at [19].…
Cahyadi v R
[2007] NSWCCA 1 Para 100

…public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:…
R v KNL
[2005] NSWCCA 260 Para 1

…DE was between 7 and 11 years of age, which was substantially less than 16 years. In R v KNL [2005] NSWCCA 260 at [42]-[43], the court observed, “it is also the case that, in terms of the position occupied by a given offence on the spectrum of offences of this kind, the younger the child the more serious the offence…
[2009] 1 AC 92
[2009] 1 AC 92 Para 52

…A 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; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity can…

Legislation cited in this decision · 3

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
1 mention (from Para 6)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention (from Para 15)

Medium Neutral Citation:	R v JDS (No. 2) [2022] NSWDC 103
Hearing dates:	11 March 2022
Date of orders:	8 April 2022
Decision date:	08 April 2022
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [104].
Catchwords:	Historical child sexual offences; aggregate sentence.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Aryal v R [2021] NSWCCA 2 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Carrol v R [2019] NSWCCA 243 Droudis v R [2020] NSWCCA 332 Fisher v R [2008] NSWCCA 129 GP v R [2017] NSWCCA 200 Jonson v R (2016) A Crim R 268 Merkel v R [2019] NSWCCA 212 R v Cattel [2019] NSWCCA 297 R v Edwards (1996) 90 A Crim R 510 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v JJ [2019] NSWCCA 148 R v King [2009] NSWCCA 117 R v KNL [2005] NSWCCA 260 R v Mailes (2003) 142 A Crim R 353 R v T (1990) 47 A Crim R 29 R v Tangi (No 12) [2020] NSWSC 547 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) JDS (Offender)
Representation:	Counsel: L. Lungo (Crown) J. Ellis (Offender)
File Number(s):	2020/20534
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900, the publication of any material which may identify or is likely to lead to the identification of the complainants in the proceedings is prohibited.