R v Lamey - [2024] NSWDC 490

District Court

New South Wales

Medium Neutral Citation: R v Lamey [2024] NSWDC 490
Hearing dates: 20/5/24-31/5/24, 8/8/24, 3/9/24
Date of orders: 3 September 2024
Decision date: 03 September 2024
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Convicted and sentenced to an aggregate term of imprisonment of 8 years 6 months with a NPP of 4 years 9 months (13/3/24-12/12/28).
I find special circumstances.
Indicatives:
Count 1 – 6 years 9 months
Counts 4, 5, and 6 – 3 years 3 months with NPP 1 year 10 months.
Count 7 – 3 years 4 months with NPP 1 year 10 months
Count 8 – 18 months with NPP 10 months
Count 9 – 19 months with NPP 10 months
Count 13 – 3 years.

Catchwords:
Crime – Sentence – Maintain unlawful sexual relationship with a child - Sexual intercourse with child aged under 10 years - Indecent assault of child aged under 16 years - Sexual intercourse with child aged under 14 years

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

Cases Cited:
Croxon v R [2017] NSWCCA 213
PH v R [2009] NSWCCA 161
R v Cattell [2019] NSWCCA 297
R v Gavel [2014] NSWCCA 56
R v Obbens [2022] NSWCCA 109
R v Todd [1982] 2 NSWLR 517
RA v R [2024] NSWCCA 149
Thorn v R [2009] NSWCCA 294

Category: Sentence
Parties: NSW DPP – Crown
Benjamin Mark Lamey - Offender
Representation: Mr C Young for Crown
Mr S Doupe for Offender

File Number(s): 19/320273
20/160284
Publication restriction: Statutory non-publication of the identities of the victims

remarks on sentence

I firstly note that there is a statutory non-publication provision which prohibits anybody from publishing the names of the victims in this case, who I will be referring to, in any event, by initials.
The offender, Mr Benjamin Lamey, stood trial before a jury from 20 May 2024 on an indictment containing 14 counts of alleged sexual offences, some of them expressed in the alternative. On 31 May 2024, the jury found him guilty of counts 1, 4, 5, 6, 7, 8, 9 and 13. Count 1 is an offence under s 66EA(1) of the Crimes Act 1900 of maintaining an unlawful sexual relationship with a child. The maximum penalty for that offence is life imprisonment.
Counts 4, 5, 6, and 7 are offences under s 66A which carry a maximum penalty of 25 years’ imprisonment and have a standard non-parole period of 15 years specified. Counts 8 and 9 are offences under s 61M(1) of the Crimes Act which carry a maximum penalty of seven years’ imprisonment and a standard non-parole period of five years is specified. And count 13 is an offence under s 66C(2) which carries a maximum penalty of 20 years’ imprisonment. The maximum penalties and, where applicable, the standard non-parole periods are guideposts or yardsticks of importance to which I have had regard.

FACTS

The facts for the purposes of sentence are for me to determine, but must be consistent with…

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 Lamey

Details

AGLC: R v Lamey [2024] NSWDC 490
Case: [2024] NSWDC 490
Decision Date: 03 September 2024

CaseChat Overview and Summary

The matter before the court involved a prosecution against Lamey, who was accused of engaging in various sexual offences against children. The incidents ranged from maintaining an unlawful sexual relationship with a child under ten years of age, sexual intercourse with a child under ten, to indecent assault of a child under sixteen, and sexual intercourse with a child under fourteen. The case was heard in a court of criminal jurisdiction, where the accused was found guilty on multiple counts. The court was tasked with determining an appropriate sentence that reflected the severity and nature of the crimes committed.

The legal issues before the court involved the determination of an appropriate sentence for the multiple serious sexual offences against children. The court had to consider the aggravating and mitigating factors of the case, the impact on the victims, and the need for deterrence and rehabilitation. It was also necessary to balance the principle of totality, which ensures that the aggregate sentence does not exceed the sum of the individual sentences for each offence, with the need to impose a sentence that adequately reflected the gravity of the crimes.

The court thoroughly examined the evidence and arguments presented before arriving at its decision. It found that the crimes committed by the accused were of a serious nature and had a profound impact on the victims. The court considered the aggravating factors, such as the vulnerability of the victims and the long-term psychological effects of the abuse. In determining the sentence, the court imposed an aggregate term of imprisonment of 8 years and 6 months, with a non-parole period of 4 years and 9 months. This sentence took into account the need for punishment, deterrence, and the rehabilitation of the offender.

The final orders of the court included a conviction and the imposition of a sentence as outlined above. The court found that special circumstances were present in the case, which justified the length of the non-parole period. The court also considered the need for the sentence to reflect the seriousness of the offences and provide adequate protection for the community. The detailed breakdown of the sentences for each count was provided to ensure clarity and transparency in the court's decision-making process.

Orders

Orders of the court

Convicted and sentenced to an aggregate term of imprisonment of 8 years 6 months with a NPP of 4 years 9 months (13/3/24-12/12/28).

I find special circumstances.

Indicatives:

Count 1 – 6 years 9 months

Counts 4, 5, and 6 – 3 years 3 months with NPP 1 year 10 months.

Count 7 – 3 years 4 months with NPP 1 year 10 months

Count 8 – 18 months with NPP 10 months

Count 9 – 19 months with NPP 10 months

Count 13 – 3 years.

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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Medium Neutral Citation:	R v Lamey [2024] NSWDC 490
Hearing dates:	20/5/24-31/5/24, 8/8/24, 3/9/24
Date of orders:	3 September 2024
Decision date:	03 September 2024
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentenced to an aggregate term of imprisonment of 8 years 6 months with a NPP of 4 years 9 months (13/3/24-12/12/28). I find special circumstances. Indicatives: Count 1 – 6 years 9 months Counts 4, 5, and 6 – 3 years 3 months with NPP 1 year 10 months. Count 7 – 3 years 4 months with NPP 1 year 10 months Count 8 – 18 months with NPP 10 months Count 9 – 19 months with NPP 10 months Count 13 – 3 years.
Catchwords:	Crime – Sentence – Maintain unlawful sexual relationship with a child - Sexual intercourse with child aged under 10 years - Indecent assault of child aged under 16 years - Sexual intercourse with child aged under 14 years
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Croxon v R [2017] NSWCCA 213 PH v R [2009] NSWCCA 161 R v Cattell [2019] NSWCCA 297 R v Gavel [2014] NSWCCA 56 R v Obbens [2022] NSWCCA 109 R v Todd [1982] 2 NSWLR 517 RA v R [2024] NSWCCA 149 Thorn v R [2009] NSWCCA 294
Category:	Sentence
Parties:	NSW DPP – Crown Benjamin Mark Lamey - Offender
Representation:	Mr C Young for Crown Mr S Doupe for Offender
File Number(s):	19/320273 20/160284
Publication restriction:	Statutory non-publication of the identities of the victims