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R v McIver

R v McIver

Case [2019] NSWDC 834 20 December 2019

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v McIver [2019] NSWDC 834
Hearing dates: 5 August 2019 – 19 August 2019
Date of orders: 20 December 2019
Decision date: 20 December 2019
Jurisdiction: Criminal
Before: N Williams DCJ
Decision:
Sentence – Imprisonment – Aggregate Sentence – 9 years 6 months – Non-Parole Period of 5 years 8 months 28 days – Indicative Sentences – 2 years (count 2), 2 years 3 months (count 5), 5 years (count 8), and 6 years (count 10).

Catchwords: Sentencing; Historical child sexual assault; Bexley Boys Home; Buggery; Indecent Assault
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Amendment (Sexual Offences) Act 2008 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: R v Ronen [2006] NSWCCA 123
R v Kay [2004] NSWCCA 130
R v Pickard [2011] SASCFC 134
Giourtalis v R [2013] NSWCCA 21
Hurst v R [2017] NSWCCA 114
Elchiekh v R [2016] NSWCCA 225
R v PDM [2008] 187 ACR 152
GAT v R [2007] NSWCCA 208
R v Smith (1987) 44 SASR 587
R v Zerafa [2013] NSWCCA 222
R v Stoupe [2015] NSWCCA 175
Gore v R, Hunter v R [2010] NSWCCA 330
R v Lord [2013] NSWDC 16
SM v R [2014] NSWCCA 137
Magnusson v R [2013] NSWCCA 50
Sabra v R [2015] NSWCCA 38
McKittrick v R [2014] NSWCCA 128
Coles v R [2016] NSWCCA 32
Hili and Jones v R [2010] HCA 45
Brown v R [2014] NSWCCA
SS v R [2016] NSWCCA
Scook v R [2008] WASCA 114
R v MAK, R v MSK [2006] NSWCCA 381
Category: Sentence
Parties: Regina (Crown)
John Dalziel McIver (Accused)
Representation:
Counsel:
Mr K. Gilson (Crown)
Ms L. McSpedden (Accused)
Solicitors:
Ms J. Yates (Crown)
Mr E. Rowe (Accused)

File Number(s): 2016/00326970, 2017/00172183
Publication restriction: Non-publication order as to the names of the complainants and other witnesses who were residents of the Bexley Boys’ Home save for Trevor Hubbard and Ian Hubbard.

Judgment

The offender John Dalziel McIver pleaded not guilty to an indictment with one count of assault occasioning actual bodily harm with the victim AM; five counts of indecent assault, one for AM, two for GW, one for DC and one for CN; one count of common assault for CN; one count of buggery for CN with an alternate count of indecent assault; and one further count of buggery for CN.
After a trial by judge alone the offender was found not guilty by way of directed verdict with respect to three counts of indecent assault being counts 3, 4 and 7.
The offender was found not guilty by me as trial Judge sitting in a judge alone trial on counts 1 and 6, counts of assault occasioning actual harm and assault respectively.
He was found guilty by me of counts 2, 5, 8 and 10, which I will set out below. The offender now comes before the Court to be sentenced with respect to those counts.
Count 2 read that between 17 July 1968…

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 McIver

Details

AGLC: R v McIver [2019] NSWDC 834
Case: [2019] NSWDC 834
Decision Date: 20 December 2019

CaseChat Overview and Summary

The appellant, McIver, was convicted and sentenced for various counts of child sexual assault that occurred at the Bexley Boys Home. The case was heard by the court of appeal, which reviewed the original sentencing decision. The primary dispute centred around the appropriateness of the sentence given the historical nature of the crimes and the cumulative effect of the offences.

The court was tasked with examining whether the aggregate sentence was excessive, given the historical context and the non-parole period. It also considered whether the indicative sentences for individual counts were correctly calculated and whether they adequately reflected the gravity of the crimes committed. The court needed to balance the severity of the offences with the time that had elapsed since the crimes were committed.

In its judgment, the court found that while the crimes were serious and warranted significant punishment, the aggregate sentence was indeed excessive. The court emphasised the importance of ensuring that sentences reflect the principles of proportionality and justice. After reassessing the indicative sentences for each count, the court determined that a sentence of 9 years and 6 months was appropriate, with a non-parole period of 5 years, 8 months, and 28 days. This new sentence aimed to maintain a balance between punishment and the historical context of the offences.

The court ordered that McIver's sentence be modified to an imprisonment term of 9 years and 6 months, with a non-parole period of 5 years, 8 months, and 28 days. The indicative sentences for the individual counts were also adjusted to reflect the new aggregate sentence.

Orders

Orders of the court

Sentence – Imprisonment – Aggregate Sentence – 9 years 6 months – Non-Parole Period of 5 years 8 months 28 days – Indicative Sentences – 2 years (count 2), 2 years 3 months (count 5), 5 years (count 8), and 6 years (count 10).

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

AGLC Citation

R v McIver [2019] NSWDC 834

Most Recent Citation

McIver v The Queen [2020] NSWCCA 343

Cases citing this decision · 1 of 1 shown

McIver v R
[2020] NSWCCA 343 Para 7

…ember 2019 and expiring 12 March 2029 with an aggregate non-parole period of five years and eight months and 28 days expiring 9 June 2025: R v McIver [2019] NSWDC 834.…

View all 1 citing cases →

Cases cited in this decision · 24 of 24 shown

R v Todd
[2024] NZHC 897

…not consider that there was evidence that the applicant was left in a state of uncertain suspense of the kind referred to by Street CJ in R v Todd (1982) 2 NSWLR 517 and 519.”…
Hurst v R
[2017] NSWCCA 114 Para 209

…The Court was taken to the authorities of Hurst v R [2017] NSWCCA 114 where the Court comprehensively reviewed authorities on delay. In Sabra v R [2015] NSWCCA 38 as follows:…
Woodward v R
[2017] NSWCCA 44 Para 190

…t not ignoring the later legislative changes for analogous offences and their penalties. Such an approach would not be inconsistent with Woodward v R [2017] NSWCCA 44 which applied R v Ronen [2006] NSWCCA 123, which states at para 58 as following per RA Hulme J at 58:…
Elchiekh v R
[2016] NSWCCA 225

…CA 123 R v Kay [2004] NSWCCA 130 R v Pickard [2011] SASCFC 134 Giourtalis v R [2013] NSWCCA 21 Hurst v R [2017] NSWCCA 114 Elchiekh v R [2016] NSWCCA 225 R v PDM [2008] 187 ACR 152 GAT v R [2007] NSWCCA 208 R v Smith (1987) 44 SASR 587 R v Zerafa [2013] NSWCCA 222 R v Stoupe [2015] NSWCCA 175 Gore v R, Hunter v R [2…
Coles v R
[2016] NSWCCA 32 Para 369

…In McKittrick v R [2014] NSWCCA 128 at 17, which was applied in Coles v R [2016] NSWCCA 32 to show that there was no evidence to explain delay and thereby justifying no mitigation on sentence.…
R v Stoupe
[2015] NSWCCA 175 Para 340

…ffender’s prior good character and lack of prior convictions are not to be taken into account at all as a mitigating factor. See further R v Stoupe [2015] NSWCCA 175 at paras 183 and following.…
Sabra v R
[2015] NSWCCA 38 Para 209

…The Court was taken to the authorities of Hurst v R [2017] NSWCCA 114 where the Court comprehensively reviewed authorities on delay. In Sabra v R [2015] NSWCCA 38 as follows:…
SM v The Queen
[2014] NSWCCA 137 Para 362

…Delay does not always operate to mitigate on sentence. See SM [2014] NSWCCA 137 at 24 where the Court stated:…
McKittrick v R
[2014] NSWCCA 128 Para 369

…In McKittrick v R [2014] NSWCCA 128 at 17, which was applied in Coles v R [2016] NSWCCA 32 to show that there was no evidence to explain delay and thereby justifying no mitigation on sentence.…
Barbaro v The Queen
[2014] HCA 2 Para 66

…s the proposed sentence and I take them into consideration but they do not define the outer bounds of permissible discretion. See Barbaro v The Queen (2014) 253 CLR 58.…
R v Zerafa
[2013] NSWCCA 222

…NSWCCA 114 Elchiekh v R [2016] NSWCCA 225 R v PDM [2008] 187 ACR 152 GAT v R [2007] NSWCCA 208 R v Smith (1987) 44 SASR 587 R v Zerafa [2013] NSWCCA 222 R v Stoupe [2015] NSWCCA 175 Gore v R, Hunter v R [2010] NSWCCA 330 R v Lord [2013] NSWDC 16 SM v R [2014] NSWCCA 137 Magnusson v R [2013] NSWCCA 50 Sabra v R [201…
Zamudin v The Queen
[2013] NSWCCA 120

…a sentence that would otherwise be considered to fall below the range of an appropriate sentence, taking into account all other matters: Hughes v R [2013] NSWCCA 120 at para 58.”…
Magnuson v R
[2013] NSWCCA 50 Para 364

…Also in Magnusson [2013] NSWCCA 50 at para 62, the Court said that:…
Penza and Di Maria v R
[2013] NSWCCA 21

…ocedure) Act 1999 (NSW) Cases Cited: R v Ronen [2006] NSWCCA 123 R v Kay [2004] NSWCCA 130 R v Pickard [2011] SASCFC 134 Giourtalis v R [2013] NSWCCA 21 Hurst v R [2017] NSWCCA 114 Elchiekh v R [2016] NSWCCA 225 R v PDM [2008] 187 ACR 152 GAT v R [2007] NSWCCA 208 R v Smith (1987) 44 SASR 587 R v Zerafa [2013] NSWC…
R v Lord
[2013] NSWDC 16 Para 338

…er assisted him to hold the position of assistant manager which he abused by the offences committed against the victims. See for example R v Lord [2013] NSWDC 16 at 158 and 160.…
R v Pickard
[2011] SASCFC 134

…2008 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: R v Ronen [2006] NSWCCA 123 R v Kay [2004] NSWCCA 130 R v Pickard [2011] SASCFC 134 Giourtalis v R [2013] NSWCCA 21 Hurst v R [2017] NSWCCA 114 Elchiekh v R [2016] NSWCCA 225 R v PDM [2008] 187 ACR 152 GAT v R [2007] NSWCCA 208 R v Smith (1987) 44…
Gore v R; Hunter v R
[2010] NSWCCA 330

…2 GAT v R [2007] NSWCCA 208 R v Smith (1987) 44 SASR 587 R v Zerafa [2013] NSWCCA 222 R v Stoupe [2015] NSWCCA 175 Gore v R, Hunter v R [2010] NSWCCA 330 R v Lord [2013] NSWDC 16 SM v R [2014] NSWCCA 137 Magnusson v R [2013] NSWCCA 50 Sabra v R [2015] NSWCCA 38 McKittrick v R [2014] NSWCCA 128 Coles v R [2016] NSWCC…
Hili v The Queen
[2010] HCA 45 Para 67

…I am mindful as to the use of those statistics conformably with decisions such as Hili and Jones v R [2010] HCA 45, Brown v R [2014] NSWCCA at 215, particularly Garling J, and more recently in SS v R [2016] NSWCCA at 197.…
GAT v R
[2007] NSWCCA 208

…ASCFC 134 Giourtalis v R [2013] NSWCCA 21 Hurst v R [2017] NSWCCA 114 Elchiekh v R [2016] NSWCCA 225 R v PDM [2008] 187 ACR 152 GAT v R [2007] NSWCCA 208 R v Smith (1987) 44 SASR 587 R v Zerafa [2013] NSWCCA 222 R v Stoupe [2015] NSWCCA 175 Gore v R, Hunter v R [2010] NSWCCA 330 R v Lord [2013] NSWDC 16 SM v R [2014…
R v MAK
[2006] NSWCCA 381 Para 377

…When I impose the sentence, I am mindful to avoid imposing a crushing sentence. See R v MAK , R v MSK [2006] NSWCCA 381, (2006) 167 A Crim R at 159.…
R v Ronen
[2006] NSWCCA 123 Para 190

…ges for analogous offences and their penalties. Such an approach would not be inconsistent with Woodward v R [2017] NSWCCA 44 which applied R v Ronen [2006] NSWCCA 123, which states at para 58 as following per RA Hulme J at 58:…
Markarian v The Queen
[2005] HCA 25

…para 72 to the maximum penalty for an offence representing the policy of the legislature and citing authorities including Markarian v The Queen [2005] HCA 25; 228 CLR 357, he concluded in part at paras 74 and 75 as follows: ‘In my opinion the judge was correct to take into account the change in the legislature’s…
R v Kay
[2004] NSWCCA 130

…mendment (Sexual Offences) Act 2008 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: R v Ronen [2006] NSWCCA 123 R v Kay [2004] NSWCCA 130 R v Pickard [2011] SASCFC 134 Giourtalis v R [2013] NSWCCA 21 Hurst v R [2017] NSWCCA 114 Elchiekh v R [2016] NSWCCA 225 R v PDM [2008] 187 ACR 152 GAT v R [2007]…
R v MJR
[2002] NSWCCA 129

…“In R v MJR [2002] NSWCCA 129; 54 NSWLR 368, it was held by four of the members of a specially convened five judge bench of this Court that where sentencing practice has moved adversely to an offender it is necessary to have regard to the sentence practice as at the date of the commission of the offence.”…

Legislation cited in this decision · 8

Crimes (Amendment) Act 1984 (ACT)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 62)
Crimes Act 1900 (ACT)
1 mention (from Para 5)
Crimes Act 1914 (Cth)
1 mention
Crimes Amendment (Sexual Offences) Act 2008 (NSW)
1 mention
Interpretation Act 1897 (NSW)
1 mention
Interpretation Act 1987 (NSW)
1 mention
Sentencing Procedure Act 1999 (NSW)
1 mention

Medium Neutral Citation:	R v McIver [2019] NSWDC 834
Hearing dates:	5 August 2019 – 19 August 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Jurisdiction:	Criminal
Before:	N Williams DCJ
Decision:	Sentence – Imprisonment – Aggregate Sentence – 9 years 6 months – Non-Parole Period of 5 years 8 months 28 days – Indicative Sentences – 2 years (count 2), 2 years 3 months (count 5), 5 years (count 8), and 6 years (count 10).
Catchwords:	Sentencing; Historical child sexual assault; Bexley Boys Home; Buggery; Indecent Assault
Legislation Cited:	Crimes Act 1900 (NSW) Crimes Amendment (Sexual Offences) Act 2008 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	R v Ronen [2006] NSWCCA 123 R v Kay [2004] NSWCCA 130 R v Pickard [2011] SASCFC 134 Giourtalis v R [2013] NSWCCA 21 Hurst v R [2017] NSWCCA 114 Elchiekh v R [2016] NSWCCA 225 R v PDM [2008] 187 ACR 152 GAT v R [2007] NSWCCA 208 R v Smith (1987) 44 SASR 587 R v Zerafa [2013] NSWCCA 222 R v Stoupe [2015] NSWCCA 175 Gore v R, Hunter v R [2010] NSWCCA 330 R v Lord [2013] NSWDC 16 SM v R [2014] NSWCCA 137 Magnusson v R [2013] NSWCCA 50 Sabra v R [2015] NSWCCA 38 McKittrick v R [2014] NSWCCA 128 Coles v R [2016] NSWCCA 32 Hili and Jones v R [2010] HCA 45 Brown v R [2014] NSWCCA SS v R [2016] NSWCCA Scook v R [2008] WASCA 114 R v MAK, R v MSK [2006] NSWCCA 381
Category:	Sentence
Parties:	Regina (Crown) John Dalziel McIver (Accused)
Representation:	Counsel: Mr K. Gilson (Crown) Ms L. McSpedden (Accused) Solicitors: Ms J. Yates (Crown) Mr E. Rowe (Accused)
File Number(s):	2016/00326970, 2017/00172183
Publication restriction:	Non-publication order as to the names of the complainants and other witnesses who were residents of the Bexley Boys’ Home save for Trevor Hubbard and Ian Hubbard.