R v McLennan, Raymond - [2009] NSWDC 298

CITATION: R v McLennan, Raymond [2009] NSWDC 298

HEARING DATE(S): 02/09/2009

JUDGMENT DATE:
9 September 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Count 1Sexual intercourse person under 16 years: Convicted. Sentenced non-parole period 18 months. Balance of term of 1 year, 1 month and 15days.
Count 2 Sexual intercourse person under 16 years: Convicted. Sentenced non-parole period of 2 years. Balance of term 1 year and 2 months partly cumulative.
Overall non-parole period 2years 3 months; balance of term 1year 2months.

CATCHWORDS: Criminal Law - Sentence - Sexual Assault - sexual intercourse with person over age 14 under 16 (x2) - fellatio - vaginal intercourse - complainant disturbed in sleep by sexual advances - complainant ill subsequent to fellatio - absence of consent in both offences - fear arising from power imbalance - early complainant - vaginal intercourse reaches mid-range of objective seriousness - fellatio falls below mid-range - indigenous offender - one prior in distant past history.

LEGISLATION CITED: Crimes Act

CASES CITED: Gladue v The Queen [1999] 1SCR 688 [80]
R v Cuthbert [1967] 2 NSWR 329
R v Rushby [1977] NSWLR 597
R v Hayes [1984] 1 NSWLR 740
R v Bruland [2005] NSWCCA 289
R v SG [2003] NSWCCA 220
R v Pearce (1998) 194 CLR 610

PARTIES: Regina
Raymond William McLennan

FILE NUMBER(S): 2009/6579

COUNSEL: C Simpson Crown Prosecutor
E. Wilson Public Defender

JUDGMENT

1. Raymond William McLennan, a single man, rented a flat at Orfram Street, Broken Hill. He is fifty years old. He shared his flat with CR, a fifteen-year-old girl and her boyfriend. In the other bedroom was another fifteen-year-old girl, PE, and a sixteen-year-old boy, CP, who I believed to be her boyfriend. The flat only had two bedrooms. McLennan slept on a lounge on the lounge room floor. Into this mix came the complainant, TJM. On the night of 4 February 2009 McLennan on two occasions had sexual intercourse with TJM in circumstances to which I shall come to shortly. He was committed for trial upon two charges of sexual intercourse without consent knowing TJM was not consenting. However, when arraigned on these charges before me he was also arraigned upon two alternate charges of having sexual intercourse with TJM, she being above the age of fourteen, but under sixteen. To these he pleaded guilty. The Crown accepted pleas of guilty made by him in full satisfaction of the indictment.

2. He is now to be held accountable for his criminal conduct on 4 February 2009 as encompassed by these charges.

3. As sentencing Judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these two offences before the Court, committed by this offender harming this victim in the community - Dareton I think it was. See Gladue v The Queen [1999] 1 SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to…

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 McLennan, Raymond

Details

AGLC: R v McLennan, Raymond [2009] NSWDC 298
Case: [2009] NSWDC 298
Decision Date: 9 September 2009

CaseChat Overview and Summary

The case of R v McLennan, Raymond came before a court in Australia, with the defendant facing charges related to sexual offences against a person under the age of 16. The complainant was disturbed in sleep by the defendant's sexual advances and subsequently fell ill after an act of fellatio was performed without consent. The defendant was charged with two counts of sexual intercourse with a person under 16 years of age and the case was heard by a higher court.

The legal issues that the court needed to address included the determination of whether the complainant's lack of consent was established in both offences and whether the seriousness of the offences warranted a specific sentence. The court also had to consider the impact of the power imbalance between the defendant and the complainant, the defendant's early guilty plea, and his Indigenous background. The court was tasked with balancing these factors to arrive at an appropriate sentence.

In delivering the judgment, the court considered the gravity of the offences and the circumstances in which they were committed. The court found that the complainant's lack of consent was evident in both offences, and that the power imbalance between the defendant and the complainant was a significant factor. The court also took into account the defendant's early guilty plea and his Indigenous background, which were mitigating factors. The court found that the vaginal intercourse reached the mid-range of objective seriousness, while the fellatio offence fell below the mid-range. The court imposed a sentence of 18 months non-parole period for the first count and 2 years non-parole period for the second count, with the balance of the terms partly cumulative.

The final orders of the court were that the defendant was convicted on both counts and sentenced to a non-parole period of 2 years and 3 months, with a balance of term of 1 year and 2 months partly cumulative. The court's decision was based on a careful consideration of the legal issues and the circumstances of the case, with the aim of achieving justice for the complainant and the community.

Orders

Orders of the court

Count 1Sexual intercourse person under 16 years: Convicted. Sentenced non-parole period 18 months. Balance of term of 1 year, 1 month and 15days.

Count 2 Sexual intercourse person under 16 years: Convicted. Sentenced non-parole period of 2 years. Balance of term 1 year and 2 months partly cumulative.

Overall non-parole period 2years 3 months; balance of term 1year 2months.

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 McLennan, Raymond [2009] NSWDC 298
HEARING DATE(S):	02/09/2009
JUDGMENT DATE:	9 September 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Count 1Sexual intercourse person under 16 years: Convicted. Sentenced non-parole period 18 months. Balance of term of 1 year, 1 month and 15days. Count 2 Sexual intercourse person under 16 years: Convicted. Sentenced non-parole period of 2 years. Balance of term 1 year and 2 months partly cumulative. Overall non-parole period 2years 3 months; balance of term 1year 2months.
CATCHWORDS:	Criminal Law - Sentence - Sexual Assault - sexual intercourse with person over age 14 under 16 (x2) - fellatio - vaginal intercourse - complainant disturbed in sleep by sexual advances - complainant ill subsequent to fellatio - absence of consent in both offences - fear arising from power imbalance - early complainant - vaginal intercourse reaches mid-range of objective seriousness - fellatio falls below mid-range - indigenous offender - one prior in distant past history.
LEGISLATION CITED:	Crimes Act
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 [80] R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Bruland [2005] NSWCCA 289 R v SG [2003] NSWCCA 220 R v Pearce (1998) 194 CLR 610
PARTIES:	Regina Raymond William McLennan
FILE NUMBER(S):	2009/6579
COUNSEL:	C Simpson Crown Prosecutor E. Wilson Public Defender