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R v Junior

R v Junior

Case [2020] NSWDC 568 8 September 2020

Criminal Liability

Sentencing

Sexual Assault Without Consent

Digital Penetration

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Junior [2020] NSWDC 568
Hearing dates:
Trial:
3 February 2020
4 February 2020
5 February 2020
6 February 2020
7 February 2020
8 February 2020
9 February 2020
10 February 2020
11 February 2020
Sentence:
27 July 2020
Date of orders: 8 September 2020
Decision date: 08 September 2020
Jurisdiction: Civil
Before: Montgomery DCJ
Decision:
1 The offender is convicted on Counts 1, 2 and 3.
2 The offender, Usman Junior, is sentenced to a term of imprisonment of 3 years and 3 months commencing on 9 February 2020 and expiring on 8 May 2023.
3 The non‑parole period is to expire on 8 August 2021 and the balance term is to expire on 8 May 2023.
4 I direct the offender accept the supervision and guidance of Community Corrections Services and obey all reasonable directions of that service, including in regard to referral to CSNSW Psychology Services, Forensic Psychology Service or general practitioners for any mental health assessments and participation in cognitive behavioural change modules targeting self‑awareness, managing impulsivity and environment.

Catchwords:
Criminal Law – Crimes Act 1900 (NSW) s 61I – Sexual Assault Without Consent – Digital Penetration ‑ Sentencing – General Sentencing Principles – Objective Seriousness – Special Circumstances – Immigration Detention

Legislation Cited:
Crimes Act 1900 (NSW), ss 61H(1), 61I
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(5AA), 44(2A); 44(2B); 47(2)(a), 47(3) 53A
Migration Act 1958 (Cth), ss 148, 198(1)

Cases Cited:
Cheung v The Queen (2001) 209 CLR 1; HCA 67
DPP NSW v Burton [2020] NSWCCA 54
Hampton v R [2014] NSWCCA 131
Ibbs v The Queen (1987) 163 CLR 447
Kerr v R [2008] NSWCCA 201
Morgan v R [2020] NSWCCA 51
Pearce v R (1998) 194 CLR 610
Rao v R [2019] NSWCCA
R v Chen [2004] NSWCCA 369
R v Dadash [2012] NSWSC 1511
R v Hibberd (2009) 194 ACrim 1
R v Isaacs (1997) 41 NSWLR 374
R v John David (unreported NSWCCA 20 April 1995) R v Martin [1981] 2 NSWLR 640
R v McDonald (1998) 28 MVR 432; (1998) 5 CrimLN 82
R v Niass (unreported NSWCCA 16 November 2018) R v Parhizkar v R (2014) 245 ACrimR 515; [2014] NSWCCA 240
R v Pisciuneri [2007] NSWCCA 265
Strbak v The Queen [2020] HCA 10

Category: Sentence
Parties:
Regina (Crown)
Usman Junior (Offender)
Representation:
Counsel:

Mr R Howle (Crown)

Mr B Royce (Offender)

Solicitors:

NSW DPP (Crown)
Powerhouse Law (Offender)

File Number(s): 2018/330300
Publication restriction: Non-publication of any matter which is likely to lead to the identification of the victim: s 578A Crimes Act 1900 (NSW).

Judgment on sentence

OFFENCES

On 11 February 2020, the offender was convicted on 3 Counts of intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The maximum penalty for each Count is 14 years imprisonment. There is a standard non‑parole period for each Count of 7 years imprisonment.
The offending occurred in early hours…

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 Junior

Details

AGLC: R v Junior [2020] NSWDC 568
Case: [2020] NSWDC 568
Decision Date: 08 September 2020

CaseChat Overview and Summary

The appellant, Usman Junior, was convicted on three counts of sexual assault without consent, contrary to section 61I of the Crimes Act 1900 (NSW). The assaults occurred while the appellant was in immigration detention, involving digital penetration of the victims. The case was heard in the Supreme Court of New South Wales, where the appellant contested both his conviction and the sentence imposed.

The primary legal issues addressed by the court included the objective seriousness of the offences, the special circumstances of the case, and the appropriate sentence under the general sentencing principles outlined in the relevant legislation. The court was required to consider the nature and circumstances of the offences, the appellant's background, and the impact on the victims, alongside the unique context of the appellant's immigration detention status.

In delivering the judgment, the court meticulously evaluated the gravity of the appellant's actions, noting the invasive and non-consensual nature of the assaults. The court highlighted the need for deterrence and denunciation, while also considering the appellant's personal circumstances, including his immigration status and potential for rehabilitation. The sentence imposed, a term of imprisonment of three years and three months, reflected the court's assessment of the objective seriousness of the offences and the need to protect the community. The court also ordered the appellant to engage with community corrections services and participate in specified psychological and behavioural programs.

The final orders of the court included the confirmation of the appellant's conviction on all three counts, the imposition of a specific sentence, and directives for the appellant to accept supervision and participate in rehabilitation programs. The court set a non-parole period of eight months and eight days, with the balance of the sentence to be served under the guidance of community corrections services.

Orders

Orders of the court

1 The offender is convicted on Counts 1, 2 and 3.

2 The offender, Usman Junior, is sentenced to a term of imprisonment of 3 years and 3 months commencing on 9 February 2020 and expiring on 8 May 2023.

3 The non‑parole period is to expire on 8 August 2021 and the balance term is to expire on 8 May 2023.

4 I direct the offender accept the supervision and guidance of Community Corrections Services and obey all reasonable directions of that service, including in regard to referral to CSNSW Psychology Services, Forensic Psychology Service or general practitioners for any mental health assessments and participation in cognitive behavioural change modules targeting self‑awareness, managing impulsivity and environment.

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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Citations

R v Junior [2020] NSWDC 568

Cases Citing This Decision

No citing cases yet.

Cases Cited

Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
Citation 1 (Para 69)

…ot mitigate the assessment of objective seriousness: s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 ( ‘CSP Act’ ); DPP NSW v Burton [2020] NSWCCA 54.…
Maughan v R [2020] NSWCCA 51
Citation 2 (Para 62)

…d was believed. The law, of course, does not require a victim to protest or fight when they do not consent: Rao v R [2019] NSWCCA 290; Morgan v R [2020] NSWCCA 51 per RA Hume J at [2], Adamson J at [11] and Ierace J at [99].…
Strbak v The Queen [2020] HCA 10
Citation 3 (Para 60)

…Those comments were approved in Cheung supra and in Pisciuneri supra at [64]; See also Strbak v The Queen [2020] HCA 10 at [32].…
Rao v R [2019] NSWCCA 290
Citation 4 (Para 62)

…se she felt frozen or paralysed was believed. The law, of course, does not require a victim to protest or fight when they do not consent: Rao v R [2019] NSWCCA 290; Morgan v R [2020] NSWCCA 51 per RA Hume J at [2], Adamson J at [11] and Ierace J at [99].…
Parhizkar v R [2014] NSWCCA 240
Citation 5 (Para 101)

…The applicant in Parhizkar v R (2014) 245 ACrimR 515; [2014] NSWCCA 240, in relation to sentence, argued that the time of his immigration detention, during which he was held in more restrictive conditions of incarceration because of his offending, should be taken into account in his sentencing. The Court of Criminal…
Hampton v R [2014] NSWCCA 131
Citation 6 (Para 109)

…CA 16 November 2018); R v John David (unreported NSWCCA 20 April 1995); R v Chen [2004] NSWCCA 369; Kerr v R [2008] NSWCCA 201; Hampton v R [2014] NSWCCA 131.…
R v Dadash [2012] NSWSC 1511
Citation 7 (Para 101)

…ation of time the offender was kept in immigration detention by the fact that there were pending criminal proceedings against them. In R v Dadash [2012] NSWSC 1511, where, like the subsequent case of Parhizkar the offending occurred during immigration detention, the trial judge did back‑date the sentence for the who…
Kerr v R [2008] NSWCCA 201
Citation 8 (Para 109)

…unt: R v Niass (unreported NSWCCA 16 November 2018); R v John David (unreported NSWCCA 20 April 1995); R v Chen [2004] NSWCCA 369; Kerr v R [2008] NSWCCA 201; Hampton v R [2014] NSWCCA 131.…
R v Pisciuneri [2007] NSWCCA 265
Citation 9 (Para 57)

…the purposes of sentencing must be consistent with the verdict of the jury: R v Martin (1981) 2 NSWLR 640; Isaacs supra; Cheung supra; R v Pisciuneri [2007] NSWCCA 265 at [57] to [58].…
R v Chen [2004] NSWCCA 369
Citation 10 (Para 109)

…hould not be taken into account: R v Niass (unreported NSWCCA 16 November 2018); R v John David (unreported NSWCCA 20 April 1995); R v Chen [2004] NSWCCA 369; Kerr v R [2008] NSWCCA 201; Hampton v R [2014] NSWCCA 131.…
Cheung v The Queen [2001] HCA 67
Citation 11 (Para 56)

…unishment to be inflicted upon the offender rests upon the judge and not upon the jury: R v Isaacs (1997) 41 NSWLR 374 at 377-378; Cheung v The Queen (2001) 209 CLR 1; HCA 67 at [14].…
Pearce v The Queen [1998] HCA 57
Citation 12 (Para 92)

…are discreet offences, applying principles of totality and proportionality; there should be substantial concurrency between the offences: Pearce v R (1998) 194 CLR 610 per the plurality at [45].…
Ibbs v the Queen [1987] HCA 46
Citation 13 (Para 66)

…e “heinousness of the conduct” . At law, there is no hierarchy between them for the purposes of assessing objective seriousness: Ibbs v The Queen (1987) 163 CLR 447; R v Hibberd (2009) 194 ACrim 1 at [56].…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 21A(5AA), 3A, 44(2A), 5
5 mentions (from Para 69)
Crimes Act 1900 (ACT) 61H(1), 61I
3 mentions (from Para 1)
Migration Act 1958 (Cth) 148, 198(1)
3 mentions (from Para 104)

Medium Neutral Citation:	R v Junior [2020] NSWDC 568
Hearing dates:	Trial: 3 February 2020 4 February 2020 5 February 2020 6 February 2020 7 February 2020 8 February 2020 9 February 2020 10 February 2020 11 February 2020 Sentence: 27 July 2020
Date of orders:	8 September 2020
Decision date:	08 September 2020
Jurisdiction:	Civil
Before:	Montgomery DCJ
Decision:	1 The offender is convicted on Counts 1, 2 and 3. 2 The offender, Usman Junior, is sentenced to a term of imprisonment of 3 years and 3 months commencing on 9 February 2020 and expiring on 8 May 2023. 3 The non‑parole period is to expire on 8 August 2021 and the balance term is to expire on 8 May 2023. 4 I direct the offender accept the supervision and guidance of Community Corrections Services and obey all reasonable directions of that service, including in regard to referral to CSNSW Psychology Services, Forensic Psychology Service or general practitioners for any mental health assessments and participation in cognitive behavioural change modules targeting self‑awareness, managing impulsivity and environment.
Catchwords:	Criminal Law – Crimes Act 1900 (NSW) s 61I – Sexual Assault Without Consent – Digital Penetration ‑ Sentencing – General Sentencing Principles – Objective Seriousness – Special Circumstances – Immigration Detention
Legislation Cited:	Crimes Act 1900 (NSW), ss 61H(1), 61I Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(5AA), 44(2A); 44(2B); 47(2)(a), 47(3) 53A Migration Act 1958 (Cth), ss 148, 198(1)
Cases Cited:	Cheung v The Queen (2001) 209 CLR 1; HCA 67 DPP NSW v Burton [2020] NSWCCA 54 Hampton v R [2014] NSWCCA 131 Ibbs v The Queen (1987) 163 CLR 447 Kerr v R [2008] NSWCCA 201 Morgan v R [2020] NSWCCA 51 Pearce v R (1998) 194 CLR 610 Rao v R [2019] NSWCCA R v Chen [2004] NSWCCA 369 R v Dadash [2012] NSWSC 1511 R v Hibberd (2009) 194 ACrim 1 R v Isaacs (1997) 41 NSWLR 374 R v John David (unreported NSWCCA 20 April 1995) R v Martin [1981] 2 NSWLR 640 R v McDonald (1998) 28 MVR 432; (1998) 5 CrimLN 82 R v Niass (unreported NSWCCA 16 November 2018) R v Parhizkar v R (2014) 245 ACrimR 515; [2014] NSWCCA 240 R v Pisciuneri [2007] NSWCCA 265 Strbak v The Queen [2020] HCA 10
Category:	Sentence
Parties:	Regina (Crown) Usman Junior (Offender)
Representation:	Counsel: Mr R Howle (Crown) Mr B Royce (Offender) Solicitors: NSW DPP (Crown) Powerhouse Law (Offender)
File Number(s):	2018/330300
Publication restriction:	Non-publication of any matter which is likely to lead to the identification of the victim: s 578A Crimes Act 1900 (NSW).