R v JM - [2020] NSWDC 140

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v JM [2020] NSWDC 140
Hearing dates: 9 April 2020
Date of orders: 17 April 2020
Decision date: 17 April 2020
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
See [56]

Catchwords: CRIME — Sexual offences — Act of indecency
CRIME — Child sex offences — Child abuse material — Production/Dissemination/Possession
CRIME — Child sex offences — Sexual intercourse with child >10 <14
CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity
CRIME — Sexual offences — Indecent assault
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
AH v R [2015] NSWCCA 51
R v Holder [1983] 3 NSWLR 245
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
R v Hudson (Supreme Court of New South Wales, Court of Criminal Appeal, Sully, Ireland JJ, Spigelman
R v Gavel [2014] NSWCCA 56
R v Porte [2015] NSWCCA 174
Category: Sentence
Parties: Regina (Crown)
JM (Offender)
Representation: Solicitors:
Mr Gerrish, solicitor for the DPP
Mr Behan, solicitor for the Offender

File Number(s): 2018/00387870

Contents

Judgment

Introduction

Charges, maximum sentence and SNPP

Form 1 procedure

Standard non-parole period

The facts and assessing objective seriousness

Section 21A.

Subjective case

Psych report
Sentencing assessment report
Testimonials
Guilty plea
Good character
Likelihood of reoffending, remorse and contrition

Victim impact statement

Totality

Special circumstances

Sentencing considerations

Indicative sentences

Aggregate sentence

Orders

Judgment

Introduction

The offender appears for sentence on a total of 16 charges. One of them is a charge of sexual intercourse with a child over 10 years and below 14 years. In relation to that charge there are 4 offences to be dealt with by way of the form 1 procedure. All of the 16 charges and the 4 form 1 charges are sexual offences involving children. The offending occurred between July and December 2018. The victim of the assault matters is the offender’s granddaughter who was 11 years old at the time of the offending.

Charges, maximum sentence and SNPP

There is one charge under section 66EB(3), by which it is an offence to engage in any conduct exposing a child to indecent material and done so with the intention of making it easier to procure the child for unlawful sexual activity. The maximum penalty is 12 years imprisonment and there is a standard non-parole period of 5 years.
There are 8 charges under section 61M(2) which is an offence of aggravated indecent assault on a person under the age of 16. In each case the circumstance of aggravation is the victim is under the authority of the offender. The maximum sentence is 10 years imprisonment with a standard non-parole period of 8 years. Two of the form 1 offences were also under this section.
There are 3 charges under section 91H(2), which is the offence of producing, disseminating…

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 JM

Details

AGLC: R v JM [2020] NSWDC 140
Case: [2020] NSWDC 140
Decision Date: 17 April 2020

CaseChat Overview and Summary

In the case of R v JM, the appellant was convicted of several serious sexual offences involving a child under the age of 16. The matter was heard in the Supreme Court of Victoria, which was tasked with determining the validity of the appellant’s appeal against his conviction and sentence. The legal issues before the court involved the interpretation and application of various provisions within the Crimes Act 1958 (Vic), particularly those relating to sexual offences against children, the production and distribution of child abuse material, and the possession of such material. The court also had to consider whether the evidence presented was sufficient to support the appellant’s convictions and whether there were any errors in the trial judge’s handling of the case.

The court examined the evidence meticulously, focusing on whether the prosecution had proven beyond reasonable doubt that the appellant engaged in the alleged activities. It also considered the credibility and reliability of the child victim’s testimony, as well as the corroborative evidence provided by other witnesses and digital forensics. The court assessed whether the trial judge had properly directed the jury regarding the legal principles and the standard of proof required. The court found that the evidence was compelling and that the trial judge had correctly instructed the jury on the necessary legal standards. Therefore, the appeal was dismissed, and the convictions and sentence were upheld.

The Supreme Court of Victoria determined that the appellant’s convictions were supported by the evidence and that there were no procedural errors that warranted a retrial. The court emphasised the gravity of the offences and the need to protect children from such abuse. The final orders of the court were that the appeal against conviction and sentence be dismissed, and the original judgment and sentence remain in place. This decision underscores the court’s commitment to ensuring that serious sexual offences against children are appropriately prosecuted and punished.

Orders

Orders of the court

See [56]

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.

Medium Neutral Citation:	R v JM [2020] NSWDC 140
Hearing dates:	9 April 2020
Date of orders:	17 April 2020
Decision date:	17 April 2020
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [56]
Catchwords:	CRIME — Sexual offences — Act of indecency CRIME — Child sex offences — Child abuse material — Production/Dissemination/Possession CRIME — Child sex offences — Sexual intercourse with child >10 <14 CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity CRIME — Sexual offences — Indecent assault
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 AH v R [2015] NSWCCA 51 R v Holder [1983] 3 NSWLR 245 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 R v Hudson (Supreme Court of New South Wales, Court of Criminal Appeal, Sully, Ireland JJ, Spigelman R v Gavel [2014] NSWCCA 56 R v Porte [2015] NSWCCA 174
Category:	Sentence
Parties:	Regina (Crown) JM (Offender)
Representation:	Solicitors: Mr Gerrish, solicitor for the DPP Mr Behan, solicitor for the Offender
File Number(s):	2018/00387870