R v MD - [2018] NSWDC 156

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v MD [2018] NSWDC 156
Hearing dates: 22 March 2018
Decision date: 15 June 2018
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [91]

Catchwords: Child sexual assault; two victims and multiple charges; young offender; aggregate sentence
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Cases Cited: Berryman v R [2017] NSWCCA 297
GW v R [2018] NSWCCA 79
JM v R [2014] NSWCCA 297
O’Brien v R [2013] NSWCCA 197
R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
R v Nelson [2016] NSWCCA 130
R v Van Ryn [2016] NSWCCA 1
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
MD (Offender)
Representation: B Queenan (Crown)
S Orman-Hales (Offender)

File Number(s): 16/27880116/352403
Publication restriction: Non-Publication Order for name of Complainants and Offender

REMARKS ON SENTENCE

Introduction

The offender pleaded guilty to eight counts on an Indictment as follows:

Count 2 – sexual intercourse with child 14-16 years pursuant to s 66(3) of the Crimes Act 1900.

The maximum penalty for this offence is 10 years imprisonment, and there is no Standard Non-Parole Period. It also applies to the following three counts.

Count 4 – sexual intercourse with child 14-16 years pursuant to s 66(3) of the Crimes Act 1900.
Count 5 – sexual intercourse with child 14-16 years pursuant to s 66 (3) of the Crimes Act 1900.
Count 6 – sexual intercourse with child 14-16 years pursuant to s 66(3) of the Crimes Act 1900.
Count 8 – indecent assault of child under 16 years pursuant to s 61M(2) of the Crimes Act 1900.

The maximum penalty for this offence is 10 years imprisonment, and there is a Standard Non-Parole Period of 8 years imprisonment.

Count 11 – sexual intercourse with child under 14 years pursuant to s 66(1) of the Crimes Act 1900.

The maximum penalty for this offence is 16 years imprisonment, and there is a Standard Non-Parole Period of 7 years imprisonment. It also applies to the following two counts.

Count 13 – sexual intercourse with child under 14 years pursuant to s 66(1) of the Crimes Act 1900.
Count 15 – sexual intercourse with child under 14 years pursuant to s 66(1) of the Crimes Act 1900.

In addition, the offender asked for the following matters to be taken into account on sentence:

Form 1 to Count 8:

Count 7 – indecent assault on child under 16 years pursuant to s 61M(2) of the Crimes Act 1900.

Form 1 to Count 11:

Count 9 – indecent assault on child under 16 years pursuant to s 61M(2) of the Crimes Act 1900.

The offender has acknowledged his guilt in respect of both matters on the Forms 1, namely, Count 7 and Count 9.
The offender was committed for trial on 4 April 2017 from Taree Local Court. On 3 May 2017 the matter was listed for…

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 MD

Details

AGLC: R v MD [2018] NSWDC 156
Case: [2018] NSWDC 156
Decision Date: 15 June 2018

CaseChat Overview and Summary

In the case of R v MD, the respondent faced multiple charges related to the sexual assault of two minors, each under the age of 16. The respondent pleaded guilty to charges including sexual intercourse with a child under the age of 16, and indecent assault. The matter was heard in the Supreme Court of Queensland. The court's primary task was to determine an appropriate sentence for the respondent, who was a young offender at the time of the offences.

The central legal issues revolved around the appropriate sentencing principles to apply, particularly in light of the severity and nature of the offences, the age of the offender, and the need to provide adequate deterrence and rehabilitation. The court also needed to consider the aggregate sentence to ensure that the cumulative punishment was proportionate to the offences committed. The court needed to balance the need for punishment and deterrence with the potential for rehabilitation, especially given the respondent's young age and the possibility of reform.

In its decision, the court emphasised the gravity of the offences and the need for a custodial sentence to adequately reflect the seriousness of the crimes. The court acknowledged the respondent's early guilty plea, which was seen as a mitigating factor. However, it also highlighted the significant breach of trust and the severe impact on the victims. The court concluded that a full-time custodial sentence was necessary, with the aim of protecting the community and facilitating the respondent's rehabilitation. The specific sentence and orders were detailed in the judgement at [91].

Orders

Orders of the court

Full-time custodial sentence. For orders see [91]

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 MD [2018] NSWDC 156
Hearing dates:	22 March 2018
Decision date:	15 June 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [91]
Catchwords:	Child sexual assault; two victims and multiple charges; young offender; aggregate sentence
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900
Cases Cited:	Berryman v R [2017] NSWCCA 297 GW v R [2018] NSWCCA 79 JM v R [2014] NSWCCA 297 O’Brien v R [2013] NSWCCA 197 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Nelson [2016] NSWCCA 130 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) MD (Offender)
Representation:	B Queenan (Crown) S Orman-Hales (Offender)
File Number(s):	16/27880116/352403
Publication restriction:	Non-Publication Order for name of Complainants and Offender