R v Joel KERSHAW

Case [2019] NSWDC 99


District Court


New South Wales

Medium Neutral Citation: R v Joel KERSHAW [2019] NSWDC 99
Hearing dates: 22 March 2019
Date of orders: 05 April 2019
Decision date: 05 April 2019
Jurisdiction:Criminal
Before: His Honour Judge G Lerve
Decision:

Aggregate sentence of 9 years with a non-parole period of 5 years and 9 months

Catchwords: CRIMINAL – sentencing – sexual intercourse, complainant under 10 – subjective issues – plea of guilty – low intellectual functioning of the offender
Legislation Cited: Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999.
Cases Cited: R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v AA [2017] NSWCCA 84
Aslan v R [2014] NSWCCA 114
R v BA [2014] NSWCCA 148
R v Borkowski (2009) NSWCCA 102
Brown v R [2014] NSWCCA 215
R v CTG [2017] NSWCCA 163
Cahyadi v R [2007] NSWCCA
Chamseddine v R [2017] NSWCCA 176
Hili & Jones v The Queen [2010] HCA 45
Jodeh v R [2011] NSWCCA 194
Jolly v R [2013] NSWCCA 76
Jonson v R [2016] NSWCCA 286
Locke v R (2010) 207 A Crim R 34
RJA v R (2008) 185 A Crim R 137
MLP v R (2006) 164 A Crim R 93
Mills v R [2017] NSWCCA 87
R v Muldoon unrep. NSWCCA 13.12.1990
Muldrock v The Queen [2011] HCA 39
Ngati v R [2014] NSWCCA 125
Nguyen v R [2007] NSWCCA 14
R v PGM [2008] NSWCCA 172
Siganto v The Queen (1998) 194 CLR 656
Tepania v R [2018] NSWCCA 247
Thamagonsa [2015] NSWCCA 107
R v Thomson & Houlten (2000) 49 NSWLR 383
R v Van Ryn [2016] NSWCCA 1
Category:Sentence
Parties: The Crown
Joel KERSHAW
Representation:

Counsel:
Ms C Mendes (for the Offender)

  Solicitors:
Mr A Hanshaw (for the Crown)
File Number(s): 2017/00333402
Publication restriction: 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.

  1. 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.

  1. The two counts relate to separate acts of intercourse that occurred in the one episode of offending.

  2. 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%…

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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

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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