R v Malloy - [2018] NSWDC 477

District Court

New South Wales

Medium Neutral Citation: R v Malloy [2018] NSWDC 477
Hearing dates: 06 December 2018
Decision date: 06 December 2018
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted.
Special circumstances found – age, 1st significant time in custody, need for a longer parole period to reintegrate into the community.
Form 1 matters taken into account on sentence imposed for Count 1.
Indicative Sentences:
COUNT 1 (SEQ 12 + Form 1 matters (SEQ 7, 9, 10): imprisonment for 5 years
COUNT 2 (SEQ 6): imprisonment for 2 years
AGGREGATE SENTENCE:
Sentenced to a total term of imprisonment of 5 years and 6 months, comprising of a NPP of 3 years to commence on 30/1/18 and to expire on 29/1/21, and a balance of term of 2 years and 6 months to commence on 30/1/21 and to expire on 29/7/23.
Eligible for release to parole on 29/1/21.

Catchwords: CRIMINAL – sentence - aggravated indecency, victim under 16 & under authority of offender - “representative count” - sexual intercourse-person 10 & under 16, under authority - Form 1 matters, 3 charges of indecent assault – offender victim’s stepfather – Victim Impact Statement – subjective matters
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act
Category: Sentence
Parties: Regina
Donald James Malloy
Representation:
Counsel:
Defence: Mr C Bolger
Solicitors:
Crown: Ms M McIvor

File Number(s): 2015/00171755
Publication restriction: Non Publication Order in respect of the name of the complainant and anything that might tend to identify her

Judgment

HIS HONOUR: Donald Malloy appears for sentence in respect of two offences, the first of those being that between 2 August 2000 and 31 December 2000 at Coffs Harbour, he did have sexual intercourse with KS, who was then between the ages of 10 and 16, namely, 11 years, in circumstances of aggravation, namely, that KS was under the authority of Donald Malloy. That is an offence contrary to s 66C(2) of the Crimes Act 1900; the maximum penalty provided is ten years imprisonment and there is no relevant standard non-parole period.
The second offence is that between 1 January 2001 and 31 December 2001 at Coffs Harbour, he did commit an act of indecency towards KS who was then under the age of 16 years, namely, 11 or 12 years, in circumstances of aggravation, namely, that KS was under his authority. That offence is contrary to s 61O(1) of the Crimes Act 1900. The maximum penalty provided is five years and there is no relevant standard non-parole period.
When being sentenced in respect of the first count, that is, sexual intercourse with a child between 10 and 16 under authority, he asks the Court to take into account a further three offences contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act. Those three offences are: first of all, an indecent assault when the complainant was aged 11, and each of the following two charges are of the same nature, although they involve different acts.…

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 Malloy

Details

AGLC: R v Malloy [2018] NSWDC 477
Case: [2018] NSWDC 477
Decision Date: 06 December 2018

CaseChat Overview and Summary

The case of R v Malloy involved a defendant convicted of multiple charges of sexual offences against a minor, including aggravated indecency and indecent assault. The victim, under the age of 16, was in the care and authority of the offender, who was her stepfather. The matter was heard in the relevant court where the defendant was ultimately convicted on all counts.

The court had to determine several legal issues, including the applicability of special circumstances such as the victim's age and the offender's status as her stepfather. The court also had to consider the impact on the victim, as evidenced by the Victim Impact Statement, and the offender’s previous criminal history. Another issue was the consideration of Form 1 matters in sentencing for certain charges. The court's task was to weigh these factors against the severity of the crimes committed.

In delivering its judgment, the court found that the special circumstances, including the age of the victim and the first significant time the offender would spend in custody, warranted consideration. The court found that the Form 1 matters, which involved previous charges of indecent assault, should be taken into account in the sentencing for the main charge of aggravated indecency. The court considered the need for a longer parole period to facilitate the offender’s reintegration into the community. The court imposed a non-parole period of 3 years for the main charge and additional sentences for the other counts, resulting in a total term of imprisonment of 5 years and 6 months.

The final orders of the court were that the defendant be sentenced to a total term of imprisonment of 5 years and 6 months. This included a non-parole period of 3 years, starting from 30 January 2018 and ending on 29 January 2021, followed by a balance of 2 years and 6 months. The defendant would be eligible for parole release on 29 January 2021.

Orders

Orders of the court

Convicted.

Special circumstances found – age, 1st significant time in custody, need for a longer parole period to reintegrate into the community.

Form 1 matters taken into account on sentence imposed for Count 1.

Indicative Sentences:

COUNT 1 (SEQ 12 + Form 1 matters (SEQ 7, 9, 10): imprisonment for 5 years

COUNT 2 (SEQ 6): imprisonment for 2 years

AGGREGATE SENTENCE:

Sentenced to a total term of imprisonment of 5 years and 6 months, comprising of a NPP of 3 years to commence on 30/1/18 and to expire on 29/1/21, and a balance of term of 2 years and 6 months to commence on 30/1/21 and to expire on 29/7/23.

Eligible for release to parole on 29/1/21.

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 Malloy [2018] NSWDC 477
Hearing dates:	06 December 2018
Decision date:	06 December 2018
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found – age, 1st significant time in custody, need for a longer parole period to reintegrate into the community. Form 1 matters taken into account on sentence imposed for Count 1. Indicative Sentences: COUNT 1 (SEQ 12 + Form 1 matters (SEQ 7, 9, 10): imprisonment for 5 years COUNT 2 (SEQ 6): imprisonment for 2 years AGGREGATE SENTENCE: Sentenced to a total term of imprisonment of 5 years and 6 months, comprising of a NPP of 3 years to commence on 30/1/18 and to expire on 29/1/21, and a balance of term of 2 years and 6 months to commence on 30/1/21 and to expire on 29/7/23. Eligible for release to parole on 29/1/21.
Catchwords:	CRIMINAL – sentence - aggravated indecency, victim under 16 & under authority of offender - “representative count” - sexual intercourse-person 10 & under 16, under authority - Form 1 matters, 3 charges of indecent assault – offender victim’s stepfather – Victim Impact Statement – subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	Regina Donald James Malloy
Representation:	Counsel: Defence: Mr C Bolger Solicitors: Crown: Ms M McIvor
File Number(s):	2015/00171755
Publication restriction:	Non Publication Order in respect of the name of the complainant and anything that might tend to identify her