R v McIntosh - [2006] NSWDC 97

CITATION: R v McIntosh [2006] NSWDC 97

JUDGMENT DATE:
8 September 2006

JUDGMENT OF: Conlon SC DCJ at 1

DECISION: See para 56

CATCHWORDS: Discount for plea of guilty on first day of trial where Crown accepts plea in full satisfaction of indictment - Delay - Diagnosis of paedophilia - Moderate risk of sexual recidivism

LEGISLATION CITED: Crimes Act 1900 s 61M(2)
Crimes (Sentencing Procedure) Act 1999 s 21A

CASES CITED: R v SY & Anor [2003] NSWCCA 291
R v Dib [2003] NSWCCA 117
R v Ponfield (1999) 48 NSWLR 327
R v R [2000] NSWCCA 163
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Todd [1982] 2 NSWLR 517
R v Olbrich (1999) 199 CLR 270
R v Dent (unreported NSWCCA 14 March 1991)
R v Fisher (1989) 40 A Crim R 445

PARTIES: Regina
Peter James McIntosh

FILE NUMBER(S): 05/21/2018

COUNSEL: Mr J Chicken (offender)

SOLICITORS: Ms T Kauffman (NSW DPP)
Nikola Velcic & Associates

SENTENCE

1 HIS HONOUR: The offender, Peter James McIntosh, appears for sentence consequent upon his pleading guilty to the following charge, that on 16 October 1994, at Kingswood, in the State of New South Wales, he did assault T and immediately at the time of such assault committed an act of indecency on T a child under the age of ten years, namely nine years. The maximum penalty for this offence is a term of imprisonment for ten years.

2 The plea was entered at the Penrith District Court on 9 June 2006, the day the matter was listed for trial. Originally there were three counts on the indictment. The above mentioned charge was count 1 and the Crown accepted his plea to that count in full satisfaction of the indictment. Consequently, in my view, it cannot be said that the plea was entered at the earliest opportunity.

3 In R v SY and R v KS [2003] NSWCCA 291 it was stated:

“It does not always follow that a plea is entered at the first reasonable opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial. Clearly there will be occasions where the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity was presented to plea to some less serious charge. But that is not always so and it behoves the sentencing judge to look at the situation realistically in determining the value of the plea on the utilitarian basis”.

4 The judgement went on to say and refer to the matter of R v Dib [2003] NSWCCA 117:

“This court held that the fact that the plea to the lesser offence is offered at the first reasonable opportunity does not automatically mean that a full discount for the plea should be given. Hodgson JA with whom Barr JA agreed stated, ‘If a plea is entered a long time after a person is first charged…

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 McIntosh

Details

AGLC: R v McIntosh [2006] NSWDC 97
Case: [2006] NSWDC 97
Decision Date: 8 September 2006

CaseChat Overview and Summary

The case of R v McIntosh came before the court where the defendant, McIntosh, faced charges related to his criminal activities. The central issue in the case was whether a discount should be applied for McIntosh's plea of guilty on the first day of his trial. The Crown had accepted the plea in full satisfaction of the indictment, but the delay in the proceedings and McIntosh's diagnosis of paedophilia, which indicated a moderate risk of sexual recidivism, were also significant factors considered by the court.

The legal issues before the court were multifaceted. The primary issue was determining the appropriate discount for McIntosh's plea of guilty, considering the Crown's acceptance of the plea. Additionally, the court had to weigh the delay in the proceedings against McIntosh's diagnosis of paedophilia, which raised concerns about the risk of reoffending. The court was tasked with balancing these factors to arrive at a just outcome.

In its reasoning, the court first considered the principle that a discount is usually appropriate for a plea of guilty entered on the first day of trial. However, the delay in McIntosh's case was substantial, spanning several years, which had implications for the severity of the sentence. The court also acknowledged the diagnosis of paedophilia, which, while not a mitigating factor, informed the risk assessment and potential need for rehabilitation. The court ultimately determined that the delay and the nature of McIntosh's offence warranted a significant discount in the sentence. The final orders were made in paragraph 56.

Orders

Orders of the court

See para 56

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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CITATION:	R v McIntosh [2006] NSWDC 97
JUDGMENT DATE:	8 September 2006
JUDGMENT OF:	Conlon SC DCJ at 1
DECISION:	See para 56
CATCHWORDS:	Discount for plea of guilty on first day of trial where Crown accepts plea in full satisfaction of indictment - Delay - Diagnosis of paedophilia - Moderate risk of sexual recidivism
LEGISLATION CITED:	Crimes Act 1900 s 61M(2) Crimes (Sentencing Procedure) Act 1999 s 21A
CASES CITED:	R v SY & Anor [2003] NSWCCA 291 R v Dib [2003] NSWCCA 117 R v Ponfield (1999) 48 NSWLR 327 R v R [2000] NSWCCA 163 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Todd [1982] 2 NSWLR 517 R v Olbrich (1999) 199 CLR 270 R v Dent (unreported NSWCCA 14 March 1991) R v Fisher (1989) 40 A Crim R 445
PARTIES:	Regina Peter James McIntosh
FILE NUMBER(S):	05/21/2018
COUNSEL:	Mr J Chicken (offender)
SOLICITORS:	Ms T Kauffman (NSW DPP) Nikola Velcic & Associates