The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the victim or anything that tends to identify the victim.
REMARKS ON SENTENCE
The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the victim or anything that tends to identify the victim.
The offender appeared at the Wagga Wagga Local Court on 14 November 2018 and pleaded guilty to two counts in identical terms on H66043252, being sequences 5 and 6 pleaded on the relevant Court Attendance Notices:
That (he) on 3 November 2017 at Mount Austin in the State of New South Wales did have sexual intercourse with DRB who was at the time under the age of ten years, namely of the age of five years, contrary to s. 66A(1) of the Crimes Act, 1900.
The two counts relate to separate acts of intercourse that occurred in the one episode of offending.
The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 22 March 2019 and accordingly the offender is entitled to the full 25%…
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
AGLC
R v Joel KERSHAW [2019] NSWDC 99
Case
[2019] NSWDC 99
Decision Date
CaseChat Overview and Summary
In the case of R v Kershaw, the accused, Joel Kershaw, pleaded guilty to engaging in sexual intercourse with a complainant who was under the age of 10. The court had to determine an appropriate sentence for the offence, taking into account the subjective circumstances of the case, including Kershaw's low intellectual functioning. The case was heard in a court of criminal jurisdiction in Australia.
The primary legal issue the court had to decide was the appropriate penalty for the offence of sexual intercourse with a child under 10, considering the subjective factors present in the case. These factors included the accused's plea of guilty, his low intellectual functioning, and the severity of the offence. The court had to balance these considerations to arrive at a just and appropriate sentence.
The court considered the principles of sentencing for sexual offences involving children and recognised the importance of deterrence and the protection of children. In determining the sentence, the court took into account the subjective issues, such as the offender's plea of guilty and his low intellectual functioning. The court also considered the gravity of the offence and the need to protect the community. After weighing these factors, the court imposed an aggregate sentence of 9 years, with a non-parole period of 5 years and 9 months.
The court's final orders were for the accused to serve an aggregate sentence of 9 years, with a non-parole period of 5 years and 9 months. This decision reflects the court's consideration of the subjective circumstances of the case, while also taking into account the need for deterrence and the protection of children.
Orders
Orders of the court
Aggregate sentence of 9 years with a non-parole period of 5 years and 9 months