R v McPhillamy, Richard - [2015] NSWDC 423

District Court

New South Wales

Medium Neutral Citation: R v McPhillamy, Richard [2015] NSWDC 423
Hearing dates: Sentence: 4 and 8 May 2015
Decision date: 08 May 2015
Jurisdiction: Criminal
Before: King DCJ
Decision:
Convicted on each count.
Indicative sentences:
COUNT 1: [SEQ 3] Aggravated act of indecency-victim under 16 & under authority offender [s61O(1) Crimes Act 1900]: 1 year
COUNT 2: [SEQ 5] Aggravated indecent assault [s61M(1) Crimes Act 1900]: 18 months
COUNT 3: [SEQ 4] Aggravated act of indecency-victim under 16 & under authority offender [s61O(1) Crimes Act 1900]: 15 months
COUNT 4: [SEQ 6] Aggravated indecent assault [s61M(1) Crimes Act 1900]: 21 months
COUNT 5: [SEQ 7] Sexual intercourse-person aged 10 or over & under 16-under authority [s66C(2) Crimes Act 1900]: 3 years & 6 months
COUNT 6: [SEQ 8] Sexual intercourse-person aged 10 or over & under 16-under authority [s66C(2) Crimes Act 1900]: 4 years
Aggregate sentence:
Special circumstances found
Sentenced to a term of imprisonment of 6 years, comprising of an NPP of 4 years to commence on 13/2/15 and to expire on 12/2/19, and a balance of term of 2 years to commence on 13/2/19 and to expire on 12/2/21. Eligible for parole on 12/2/19.

Catchwords: CRIMINAL LAW – sentence – offences against the person - relevant factors – indecent assault person aged under 16 – sexual intercourse person aged over 10 and under 16 – under authority - delay
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Dodd (1991) 57 A Crim R 549
Ibbs v The Queen [1987] 163 CLR 447
Mill v R [1988] HCA 70
R v Allpass (1994) 72 A Crim R 561
R v Burchell (1987) 34 A Crim R 148
R v Dennis (unreported) 14 December 1992 NSWCCA
R v Gebrail (unreported) 18 November 1994 NSWCCA
R v Hibberd [2009] NSWCCA 20
R v Jarrold [2010] NSWCCA 69
R v KRC (2000) NSWCCA 541 at 32
R v MJR [2002] 54 NSWLR 368
R v Moon [2000] 117 A Crim R 497
R v Shore [1992] 66 A Crim R 37
Thorp v R [2010] NSWCCA 261
Veen v The Queen (1979) 143 CLR 458
Wu v R [2011] NSWCCA 102.
Texts Cited: Judicial Commission of NSW, “The impact of the standard non-parole period sentencing scheme on sentencing patterns in NSW”, Research Monograph 33, May 2010
Category: Sentence
Parties: Regina (Crown)
Richard McPhillamy (Offender)
Representation: Counsel:
Crown: Mr J Bowers
Defence: Mr G Heathcote
Solicitors:
Crown (ODPP NSW): Ms A James
Defence (Proctor & Associates): Mr M Campbell

File Number(s): 2013/0014045
Publication restriction: Pursuant to non-publication orders there is to be no publication of anything that identifies or is likely to lead to the identification of the complainant and tendency witnesses.

HIS HONOUR: Richard McPhillamy appears for sentence in respect of six offences.

Two offences, Counts 1 and 3, are contrary to s 61O(1) of the Crimes Act 1900. They are expressed in the same terms in the indictment,…

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 McPhillamy, Richard

Details

AGLC: R v McPhillamy, Richard [2015] NSWDC 423
Case: [2015] NSWDC 423
Decision Date: 08 May 2015

CaseChat Overview and Summary

The case of R v McPhillamy, Richard involved a series of offences against minors under the authority of the offender. McPhillamy was convicted on six counts, including aggravated acts of indecency and indecent assaults against a person under 16, as well as sexual intercourse with a person aged between 10 and 16. The matter was heard in the District Court of New South Wales.

The central legal issues before the court were the appropriate sentencing for each offence, considering the gravity and nature of the crimes, and the circumstances under which they were committed. The court was also required to determine whether any special circumstances applied, potentially impacting the severity of the sentence. Additionally, the court had to consider the delay in bringing the charges and its effect on the sentencing.

The court addressed the severity of the offences, noting the significant breach of trust and the long-term impact on the victims. It found that the offences were aggravated due to the offender's position of authority over the victims. The court also recognised the delay in prosecution but concluded it did not warrant a reduction in sentence. In determining the aggregate sentence, the court imposed a non-parole period of 4 years and a total sentence of 6 years, taking into account the need for deterrence and protection of the community.

The final orders included McPhillamy being sentenced to imprisonment terms for each offence, with an aggregate sentence of 6 years, including a non-parole period of 4 years, to be eligible for parole after 2 years.

Orders

Orders of the court

Convicted on each count.

Indicative sentences:

COUNT 1: [SEQ 3] Aggravated act of indecency-victim under 16 & under authority offender [s61O(1) Crimes Act 1900]: 1 year

COUNT 2: [SEQ 5] Aggravated indecent assault [s61M(1) Crimes Act 1900]: 18 months

COUNT 3: [SEQ 4] Aggravated act of indecency-victim under 16 & under authority offender [s61O(1) Crimes Act 1900]: 15 months

COUNT 4: [SEQ 6] Aggravated indecent assault [s61M(1) Crimes Act 1900]: 21 months

COUNT 5: [SEQ 7] Sexual intercourse-person aged 10 or over & under 16-under authority [s66C(2) Crimes Act 1900]: 3 years & 6 months

COUNT 6: [SEQ 8] Sexual intercourse-person aged 10 or over & under 16-under authority [s66C(2) Crimes Act 1900]: 4 years

Aggregate sentence:

Special circumstances found

Sentenced to a term of imprisonment of 6 years, comprising of an NPP of 4 years to commence on 13/2/15 and to expire on 12/2/19, and a balance of term of 2 years to commence on 13/2/19 and to expire on 12/2/21. Eligible for parole on 12/2/19.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v McPhillamy, Richard [2015] NSWDC 423
Hearing dates:	Sentence: 4 and 8 May 2015
Decision date:	08 May 2015
Jurisdiction:	Criminal
Before:	King DCJ
Decision:	Convicted on each count. Indicative sentences: COUNT 1: [SEQ 3] Aggravated act of indecency-victim under 16 & under authority offender [s61O(1) Crimes Act 1900]: 1 year COUNT 2: [SEQ 5] Aggravated indecent assault [s61M(1) Crimes Act 1900]: 18 months COUNT 3: [SEQ 4] Aggravated act of indecency-victim under 16 & under authority offender [s61O(1) Crimes Act 1900]: 15 months COUNT 4: [SEQ 6] Aggravated indecent assault [s61M(1) Crimes Act 1900]: 21 months COUNT 5: [SEQ 7] Sexual intercourse-person aged 10 or over & under 16-under authority [s66C(2) Crimes Act 1900]: 3 years & 6 months COUNT 6: [SEQ 8] Sexual intercourse-person aged 10 or over & under 16-under authority [s66C(2) Crimes Act 1900]: 4 years Aggregate sentence: Special circumstances found Sentenced to a term of imprisonment of 6 years, comprising of an NPP of 4 years to commence on 13/2/15 and to expire on 12/2/19, and a balance of term of 2 years to commence on 13/2/19 and to expire on 12/2/21. Eligible for parole on 12/2/19.
Catchwords:	CRIMINAL LAW – sentence – offences against the person - relevant factors – indecent assault person aged under 16 – sexual intercourse person aged over 10 and under 16 – under authority - delay
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Dodd (1991) 57 A Crim R 549 Ibbs v The Queen [1987] 163 CLR 447 Mill v R [1988] HCA 70 R v Allpass (1994) 72 A Crim R 561 R v Burchell (1987) 34 A Crim R 148 R v Dennis (unreported) 14 December 1992 NSWCCA R v Gebrail (unreported) 18 November 1994 NSWCCA R v Hibberd [2009] NSWCCA 20 R v Jarrold [2010] NSWCCA 69 R v KRC (2000) NSWCCA 541 at 32 R v MJR [2002] 54 NSWLR 368 R v Moon [2000] 117 A Crim R 497 R v Shore [1992] 66 A Crim R 37 Thorp v R [2010] NSWCCA 261 Veen v The Queen (1979) 143 CLR 458 Wu v R [2011] NSWCCA 102.
Texts Cited:	Judicial Commission of NSW, “The impact of the standard non-parole period sentencing scheme on sentencing patterns in NSW”, Research Monograph 33, May 2010
Category:	Sentence
Parties:	Regina (Crown) Richard McPhillamy (Offender)
Representation:	Counsel: Crown: Mr J Bowers Defence: Mr G Heathcote Solicitors: Crown (ODPP NSW): Ms A James Defence (Proctor & Associates): Mr M Campbell
File Number(s):	2013/0014045
Publication restriction:	Pursuant to non-publication orders there is to be no publication of anything that identifies or is likely to lead to the identification of the complainant and tendency witnesses.