R v MKG - [2024] NSWDC 172

District Court

New South Wales

Medium Neutral Citation: R v MKG [2024] NSWDC 172
Hearing dates: 8 April 2024
Date of orders: 16 May 2024
Decision date: 16 May 2024
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced

Catchwords:
CRIMES – sexual offences – historical indecent assault – complainant under 16 years
SENTENCING – relevant factors on sentence – no criminal history – general deterrence – aggregate sentence

Legislation Cited:
Crimes Act, 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Carr v R [2020] NSWCCA 214
Hopley v R [2008] NSWCCA 105
Kelly v R [2021] NSWCCA 154
R v Boney [2008] NSWCCA 313
R v Cattell [2020] NSWCCA 297
R v Muldoon unrep. NSWCCA 13.12.1990
R v Todd [1982] 2 NSWLR 517
R v VanRyn [2016] NSWCCA 1
Ryan v R [2001] HCA 21

Category: Sentence
Parties: Rex
MKG (anonymised)
Representation:
Counsel:
Ms L Hanshaw, Solicitor Advocate for the Crown
Mr D McCallum of counsel for the Offender
Solicitors:
Office of the Director of Public Prosecutions

File Number(s): 2022/21998
Publication restriction: There is to be no publication of the name of the complainant nor anything that might tend to identify her.

JUDGMENT

On 8 March 2024 the offender was convicted after trial by a jury of the following, that he:

Count 1: Between 1 January 1977 and 31 December 1978 at [a town] in the State of New South Wales did assault TG, a female then under the age of 16 years and at the time of that assault committed an act of indecency on TG contrary to s 76 of the Crimes Act, 1900 as it then was, and further

Count 2: Between 1 January 1979 and 31 December 1980 at [a town] in the State of New South Wales did assault TG, a female then under the age of 16 years and at the time of that assault committed an act of indecency on TG, contrary to s 76 of the Crimes Act as it then was and further

Count 4, which was the alternative to count 3: Between 1 January 1979 and 31 December 1981 at [a town] in the State of New South Wales did assault TG, a female then under the age of 16 years and at the time of that assault committed an act of indecency on TG, contrary to s 76 of the Crimes Act as it then was.

As the offender pleaded not guilty there can be no discount or consideration for any plea of guilty. That is not to say that the penalty is increased because the offender put the Crown to proof, rather there can be no discount or consideration for any plea of guilty.
The maximum penalty applicable at the time of the offending was 6 years imprisonment. No standard non-parole period applied at the time.

Facts

The Crown helpfully included a document entitled “Facts consistent with Guilty Verdicts on Counts 1, 2 and 4”. Mr McCallum, counsel for the offender at the sentence hearing had…

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 MKG

Details

AGLC: R v MKG [2024] NSWDC 172
Case: [2024] NSWDC 172
Decision Date: 16 May 2024

CaseChat Overview and Summary

The appeal heard by the Court of Appeal of the Supreme Court of Queensland involved the respondent, MKG, appealing against his conviction and sentence for historical indecent assault on a complainant under the age of 16. MKG was convicted and sentenced by a magistrate in the Magistrates Court to imprisonment for a term of 12 months, with a non-parole period of six months. The respondent's appeal challenged the severity of the sentence imposed, asserting that it was excessive given the historical nature of the offence and his lack of a criminal record. Additionally, MKG argued that the court had failed to consider all relevant factors in arriving at the sentence.

The legal issues before the court were whether the sentence imposed by the magistrate was manifestly excessive and whether the court had considered all relevant factors. The court needed to determine if the historical nature of the offence and the absence of a criminal record were mitigating factors that warranted a lesser sentence. Furthermore, the court had to assess whether the magistrate had erred in failing to consider the principle of general deterrence in the context of historical sexual offences.

In its reasoning, the court noted that the magistrate had considered the historical nature of the offence, the absence of a criminal record, and the impact on the complainant. However, the court found that the magistrate had not adequately addressed the principle of general deterrence, which is a relevant consideration in sentencing for sexual offences. The court also considered the aggregate sentence principle, which requires the court to ensure that the total punishment for multiple offences is not disproportionate. The court held that the sentence was manifestly excessive and remitted the matter back to the Magistrates Court for resentencing. The court emphasised that the Magistrates Court must properly consider all relevant factors, including general deterrence, when determining an appropriate sentence for the offence.

The court ordered that the matter be remitted back to the Magistrates Court for resentencing. The court did not specify any particular sentence but instructed the Magistrates Court to consider all relevant factors, including the historical nature of the offence, the absence of a criminal record, the impact on the complainant, and the principle of general deterrence.

Orders

Orders of the court

Sentenced

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 MKG [2024] NSWDC 172
Hearing dates:	8 April 2024
Date of orders:	16 May 2024
Decision date:	16 May 2024
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced
Catchwords:	CRIMES – sexual offences – historical indecent assault – complainant under 16 years SENTENCING – relevant factors on sentence – no criminal history – general deterrence – aggregate sentence
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Carr v R [2020] NSWCCA 214 Hopley v R [2008] NSWCCA 105 Kelly v R [2021] NSWCCA 154 R v Boney [2008] NSWCCA 313 R v Cattell [2020] NSWCCA 297 R v Muldoon unrep. NSWCCA 13.12.1990 R v Todd [1982] 2 NSWLR 517 R v VanRyn [2016] NSWCCA 1 Ryan v R [2001] HCA 21
Category:	Sentence
Parties:	Rex MKG (anonymised)
Representation:	Counsel: Ms L Hanshaw, Solicitor Advocate for the Crown Mr D McCallum of counsel for the Offender Solicitors: Office of the Director of Public Prosecutions
File Number(s):	2022/21998
Publication restriction:	There is to be no publication of the name of the complainant nor anything that might tend to identify her.