Legal Research
Cases
R v Mollel

R v Mollel

Case [2017] NSWDC 36 3 March 2017

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Victim Under Age of 16

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Mollel [2017] NSWDC 36
Hearing dates: 10 – 13 October 2016; 17 – 21 October 2016; 24 October 2016 – 1 November 2016; and 9 December 2016
Date of orders: 03 March 2017
Decision date: 03 March 2017
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
1. On Count 1, for the offence of aggravated indecent assault, the offender is convicted and sentenced to a period of imprisonment of 3 years. I decline to set a non-parole period. The sentence is to commence on 3 September 2016 and expire on 2 September 2019; and
2. On Count 3, for the offence of aggravated indecent assault, the offender is convicted and sentenced to a minimum term of imprisonment of 4 years and an additional term of 2 years. The sentence is to commence on 3 September 2016 and expire on 2 September 2022. The non-parole period will expire on 2 September 2020 at which stage, the offender will be eligible to be released to parole.
Catchwords: CRIMINAL LAW – SENTENCE – aggravated indecent assault – victim under age of 16 – whether offender breached complainant’s trust – whether offending conduct was spontaneous and opportunistic – offender’s prior good character – special circumstances – whether offender will suffer isolation in custody – whether conditions of offender’s custody likely to be more onerous – evidence required to assess whether imprisonment will be more onerous
Legislation Cited: Crimes Act 1900 (NSW) s 61M(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2)(eb), 21A(2)(k), 21A(3)(i), 21A(5A), 44(2), 45(1), 47(2)(a), 47(3), 54B(2)
Cases Cited: BT v R [2010] NSWCCA
Clarkson v R (2007) 171 A Crim R 1; [2007] NSWCCA 70
Corby v R [2010] NSWCCA 146
CT v R [2017] NSWCCA 15
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Dagwell [2006] NSWCCA 98
R v Darrell Williams (Unreported, NSW Court of Criminal Appeal, 5 November 1991)
R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370
R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238
R v McClymont (Unreported, NSW Court of Criminal Appeal, 17 December 1992)
R v PGM [2008] NSWCCA 172
R v Smith [2004] WASCA 44
R v Stanbouli (2003) 141 A Crim R 531
R v Wicks [2005] NSWCCA 409
R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115
R v LP [2010] NSWCCA 154
RWB v R; R v RWB (2010) 202 A Crim 209; [2010] NSWCCA 147
Category: Sentence
Parties: Regina (Crown)
Mr Peter Mollel (Offender)
Representation:
Counsel:
Ms D Daleo (Crown)
Solicitor:
Solicitor for the Director of Public Prosecutions (Crown)
Mr M Mantaj (Offender)

File Number(s): 2015/162772
Publication restriction: The publication and broadcasting of the name of the complainant and sister and anything which may tend to identify them is prohibited: Children (Criminal Proceedings) Act 1987 ss 15A(1)(a), 15A(1)(b) and 15A(1)(e)

Judgment

Preliminary

Following a trial commencing on 10 October 2016, the offender…

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 Mollel

Details

AGLC: R v Mollel [2017] NSWDC 36
Case: [2017] NSWDC 36
Decision Date: 03 March 2017

CaseChat Overview and Summary

The appellant, Mollel, was convicted on two counts of aggravated indecent assault, with the victims being under the age of 16. The court considered various factors in determining the appropriate sentence, including whether the offender had breached the complainant's trust, the spontaneity and opportunism of the offending conduct, the offender's prior good character, and any special circumstances that may be relevant. The court also considered whether the offender would suffer isolation in custody and whether the conditions of their custody were likely to be more onerous.

The court had to determine whether the offender breached the complainant’s trust and whether the offending conduct was spontaneous and opportunistic. The court also considered whether there were any special circumstances that warranted a departure from the usual sentencing principles. Furthermore, the court examined the offender's prior good character and the potential impact of imprisonment on the offender, including the possibility of isolation and more onerous conditions of custody. The court had to weigh these factors to determine an appropriate sentence.

The court found that the offender had breached the complainant's trust and that the offending conduct was not spontaneous but rather premeditated. The court also found that there were no special circumstances that warranted a departure from the usual sentencing principles. The court acknowledged the offender's prior good character but found that it did not warrant a significant reduction in the sentence. The court considered the potential impact of imprisonment on the offender but ultimately determined that the seriousness of the offending conduct warranted a custodial sentence. The court sentenced the offender to a period of imprisonment of 3 years for the first count and a minimum term of imprisonment of 4 years and an additional term of 2 years for the second count.

The court ordered that the offender be sentenced to a period of imprisonment of 3 years for the first count and a minimum term of imprisonment of 4 years and an additional term of 2 years for the second count. The sentence was to commence on 3 September 2016 and expire on 2 September 2022. The non-parole period for the second count would expire on 2 September 2020, at which stage the offender would be eligible to be released to parole. The court declined to set a non-parole period for the first count.

Orders

Orders of the court

1. On Count 1, for the offence of aggravated indecent assault, the offender is convicted and sentenced to a period of imprisonment of 3 years. I decline to set a non-parole period. The sentence is to commence on 3 September 2016 and expire on 2 September 2019; and

2. On Count 3, for the offence of aggravated indecent assault, the offender is convicted and sentenced to a minimum term of imprisonment of 4 years and an additional term of 2 years. The sentence is to commence on 3 September 2016 and expire on 2 September 2022. The non-parole period will expire on 2 September 2020 at which stage, the offender will be eligible to be released to parole.

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.

Actions

Citations

R v Mollel [2017] NSWDC 36

Cases Citing This Decision

No citing cases yet.

Cases Cited

CT v R [2017] NSWCCA 15
Citation 1 (Para 26)

…J agreeing) 27. R v McClymont (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Mahoney JA and McInerney J, 17 December 1992) 28. See: CT v R [2017] NSWCCA 15 at [71] – [75] (Hoeben CJ at CL, with Johnson and Latham JJ agreeing)…
Muldrock v The Queen [2011] HCA 39
Citation 2 (Para 44)

…Act . [36] 36. See: Corby v R [2010] NSWCCA 146 at [71] (Johnson J with Beazley JA and Kirby J agreeing) and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, 131 [25]…
BT v R [2010] NSWCCA 267
Citation 3 (Para 26)

…7] Not that I accept that the acts the subject of the two offences were consensual as submitted. [28] 26. Although not a matter of mitigation: BT v R [2010] NSWCCA 267 at [22] – [24] (RS Hulme J with McColl JA and Latham J agreeing) 27. R v McClymont (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Mahoney JA…
R v LP [2010] NSWCCA 154
Citation 4 (Para 40)

…WB v R; R v RWB (2010) 202 A Crim 209; [2010] NSWCCA 147, 235 – 236 [192] – [195] (Simpson J with Johnson and McCallum JJ agreeing); and R v LP [2010] NSWCCA 154 at [21] (Buddin J with Hodgson JA and Whealy J agreeing)…
Corby v R [2010] NSWCCA 146
Citation 5 (Para 44)

…nce of which he has been found guilty and the standard non-parole period of 8 years provided under s 54B(2) of the 1999 Act . [36] 36. See: Corby v R [2010] NSWCCA 146 at [71] (Johnson J with Beazley JA and Kirby J agreeing) and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, 131 [25]…
RWB v R [2010] NSWCCA 147
Citation 6 (Para 40)

…34. Clarkson v R (2007) 171 A Crim R 1; [2007] NSWCCA 70, 50 – 51 [273] (Howie J with Sully J agreeing) 35. RWB v R; R v RWB (2010) 202 A Crim 209; [2010] NSWCCA 147, 235 – 236 [192] – [195] (Simpson J with Johnson and McCallum JJ agreeing); and R v LP [2010] NSWCCA 154 at [21] (Buddin J with Hodgson JA and Whealy J…
R v XX [2009] NSWCCA 115
Citation 7 (Para 48)

…wise. I am satisfied that it is appropriate to do so having regard to the principles summarised by Hall J in R v XX. [40] 40. (2009) 195 A Crim R 38; [2009] NSWCCA 115, 48 [52] (Hall J with Tobias JA and Kirby J agreeing)…
R v PGM [2008] NSWCCA 172
Citation 8

…13 A Crim R 386; [2000] NSWCCA 238 R v McClymont (Unreported, NSW Court of Criminal Appeal, 17 December 1992) R v PGM [2008] NSWCCA 172 R v Smith [2004] WASCA 44 R v Stanbouli (2003) 141 A Crim R 531 R v Wicks [2005] NSWCCA 409 R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 R v LP [2010] NSWCCA 154 RWB v R; R v RW…
R v D [2008] NZCA 267
Citation 9

…offenders for child related sexual offences. General deterrence is of paramount importance ( R v Levi (1997) unreported, NSWCCA, 15 May 1997, R v D (1997) 69 SASR 413; R v AJW (2001) 80 SASR 246; Bell v R [2001] WASCA 40). Any abuse of a position of trust is considered to be an aggravating feature. Other relevant fac…
GAT v R [2007] NSWCCA 208
Citation 10 (Para 22)

…in the indecent assault of a child to consider the actual character of the assault, including the degree of physical contact involved (see GAT v R [2007] NSWCCA 208 at [22]). Having regard to the degree of genital connection in counts 4 and 7, and the gravity of the conduct in count 3 which although grossly indecen…
Clarkson v R [2007] NSWCCA 70
Citation 11 (Para 40)

…under s 44(2) of the 1999 Act without evidence that the conditions of imprisonment will be more onerous. [35] 34. Clarkson v R (2007) 171 A Crim R 1; [2007] NSWCCA 70, 50 – 51 [273] (Howie J with Sully J agreeing) 35. RWB v R; R v RWB (2010) 202 A Crim 209; [2010] NSWCCA 147, 235 – 236 [192] – [195] (Simpson J with…
R v Dagwell [2006] NSWCCA 98
Citation 12 (Para 25)

…33 and the victim was 13. The age differential between them is of some significance to the objective seriousness of the offence. [25] 25. R v Dagwell [2006] NSWCCA 98 at [35] (Howie J with Beazley JA and Adams J agreeing)…
R v Wicks [2005] NSWCCA 409
Citation 13

…17 December 1992) R v PGM [2008] NSWCCA 172 R v Smith [2004] WASCA 44 R v Stanbouli (2003) 141 A Crim R 531 R v Wicks [2005] NSWCCA 409 R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 R v LP [2010] NSWCCA 154 RWB v R; R v RWB (2010) 202 A Crim 209; [2010] NSWCCA 147 Category: Sentence Parties: Regina (Crown) Mr Pet…
R v Gent [2005] NSWCCA 370
Citation 14 (Para 34)

…es of general deterrence would be of significant consideration in the Court’s sentencing exercise. [31] 30. See: R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 which affirmed R v Kennedy [2000] NSWCCA 527 31. Crown’s Submissions on Sentence, undated at [15]…
R v Smith [2004] WASCA 44
Citation 15

…CA 238 R v McClymont (Unreported, NSW Court of Criminal Appeal, 17 December 1992) R v PGM [2008] NSWCCA 172 R v Smith [2004] WASCA 44 R v Stanbouli (2003) 141 A Crim R 531 R v Wicks [2005] NSWCCA 409 R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 R v LP [2010] NSWCCA 154 RWB v R; R v RWB (2010) 202 A Crim 209; […
R v MH [2001] NSWCCA 117
Citation 16

…h the offending occurred, the period of time over which the offending occurred and whether the offending was part of a course of conduct (see R v H [2001] NSWCCA 117).” 37. [2005] NSWCCA 409 at [39] (McClellan CJ at CL with Adams and Hoeben JJ agreeing)…
Bell v The Queen [2001] WASCA 40
Citation 17

…rrence is of paramount importance ( R v Levi (1997) unreported, NSWCCA, 15 May 1997, R v D (1997) 69 SASR 413; R v AJW (2001) 80 SASR 246; Bell v R [2001] WASCA 40). Any abuse of a position of trust is considered to be an aggravating feature. Other relevant factors in sentencing for this type of offence include th…
R v Kennedy [2000] NSWCCA 527
Citation 18 (Para 34)

…ant consideration in the Court’s sentencing exercise. [31] 30. See: R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 which affirmed R v Kennedy [2000] NSWCCA 527 31. Crown’s Submissions on Sentence, undated at [15]…
R v Huang [2000] NSWCCA 238
Citation 19 (Para 39)

…n. In this regard, some limited (but not much) recognition is to be given to his circumstances in prison. [33] 33. R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238, 391 [18] – [19] (Adams J with Spigelman CJ and Newman J agreeing)…
GF v The Queen [2005] ACTCA 46
Citation 20

…sexual offences. General deterrence is of paramount importance ( R v Levi (1997) unreported, NSWCCA, 15 May 1997, R v D (1997) 69 SASR 413; R v AJW (2001) 80 SASR 246; Bell v R [2001] WASCA 40). Any abuse of a position of trust is considered to be an aggravating feature. Other relevant factors in sentencing for this…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 21A(2)(eb), 21A(2)(k), 21A(3)(i), 21A(5A...
9 mentions (from Para 20)
Children (Criminal Proceedings) Act 1987 (NSW) 15A(1)(a), 15A(1)(b), 15A(1)(e)
3 mentions
Crimes Act 1900 (ACT) 61M(2)
2 mentions (from Para 1)

Medium Neutral Citation:	R v Mollel [2017] NSWDC 36
Hearing dates:	10 – 13 October 2016; 17 – 21 October 2016; 24 October 2016 – 1 November 2016; and 9 December 2016
Date of orders:	03 March 2017
Decision date:	03 March 2017
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	1. On Count 1, for the offence of aggravated indecent assault, the offender is convicted and sentenced to a period of imprisonment of 3 years. I decline to set a non-parole period. The sentence is to commence on 3 September 2016 and expire on 2 September 2019; and 2. On Count 3, for the offence of aggravated indecent assault, the offender is convicted and sentenced to a minimum term of imprisonment of 4 years and an additional term of 2 years. The sentence is to commence on 3 September 2016 and expire on 2 September 2022. The non-parole period will expire on 2 September 2020 at which stage, the offender will be eligible to be released to parole.
Catchwords:	CRIMINAL LAW – SENTENCE – aggravated indecent assault – victim under age of 16 – whether offender breached complainant’s trust – whether offending conduct was spontaneous and opportunistic – offender’s prior good character – special circumstances – whether offender will suffer isolation in custody – whether conditions of offender’s custody likely to be more onerous – evidence required to assess whether imprisonment will be more onerous
Legislation Cited:	Crimes Act 1900 (NSW) s 61M(2) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2)(eb), 21A(2)(k), 21A(3)(i), 21A(5A), 44(2), 45(1), 47(2)(a), 47(3), 54B(2)
Cases Cited:	BT v R [2010] NSWCCA Clarkson v R (2007) 171 A Crim R 1; [2007] NSWCCA 70 Corby v R [2010] NSWCCA 146 CT v R [2017] NSWCCA 15 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Dagwell [2006] NSWCCA 98 R v Darrell Williams (Unreported, NSW Court of Criminal Appeal, 5 November 1991) R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238 R v McClymont (Unreported, NSW Court of Criminal Appeal, 17 December 1992) R v PGM [2008] NSWCCA 172 R v Smith [2004] WASCA 44 R v Stanbouli (2003) 141 A Crim R 531 R v Wicks [2005] NSWCCA 409 R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 R v LP [2010] NSWCCA 154 RWB v R; R v RWB (2010) 202 A Crim 209; [2010] NSWCCA 147
Category:	Sentence
Parties:	Regina (Crown) Mr Peter Mollel (Offender)
Representation:	Counsel: Ms D Daleo (Crown) Solicitor: Solicitor for the Director of Public Prosecutions (Crown) Mr M Mantaj (Offender)
File Number(s):	2015/162772
Publication restriction:	The publication and broadcasting of the name of the complainant and sister and anything which may tend to identify them is prohibited: Children (Criminal Proceedings) Act 1987 ss 15A(1)(a), 15A(1)(b) and 15A(1)(e)