R v Mr (a pseudonym) - [2019] NSWDC 440

District Court

New South Wales

Medium Neutral Citation: R v MR (a pseudonym) [2019] NSWDC 440
Hearing dates: 14 March 2019
Date of orders: 02 May 2019
Decision date: 02 May 2019
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
At [177]

Catchwords: CRIMINAL LAW – sentencing – aggravated indecent assault – aggravated sexual assault with a Form 1 – cause to take intoxicating substance – produce child abuse material – nine counts – questions of insight and remorse
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
Cases Cited: Cahyadi v R (2007) 168 A Crim R 41
Minehan v R (2010) 201 A Crim R 243
Pearce v The Queen (1998) 194 CLR 610
R v BJW (2000) 112 A Crim R 1
R v Lulham (2016) 263 A Crim R 287
Re Attorney General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146
Texts Cited: None
Category: Sentence
Parties: Regina (Crown)
MR (a pseudonym) (Offender)
Representation:
Counsel:
Ms K Tennant (Crown)
Mr A Radojev (Offender)
Solicitors:
ODPP (Crown)
P Williams and Company Lawyers (Offender)

File Number(s): 2017/13664
Publication restriction: Non-Publication Order of the name of the Offender who will be known as ‘MR’ and the complainants. The identity of the complainants will be further restricted by referring to them as Lucy and Emma.

The pseudonym which has been given to the Offender are the initials ‘MR’. MR appears before the Court for sentencing today after pleading guilty to the nine charges on the Crown’s sentence summary (Exhibit A). Those nine charges are set out below, not in chronological order but in the order in which they appear on the Indictment.
Count 1 on the Indictment, being that on 14 January 2017, at a camping ground on the Central Coast region of New South Wales, the Offender did assault Emma and at the time of the assault committed an act of indecency on Emma, a child under the age of 16 years, namely 13 years, in breach of s61M(2) of the Crimes Act.
Count 2 is that on or about 14 January 2017, at a camping ground on the Central Coast region of New South Wales, the Offender did cause Emma to take an intoxicating substance, namely diazepam, with intent to commit an indictable offence, namely indecent assault, in breach of s38 of the Crimes Act.
Count 3 is that on 15 January 2017, at a camping ground on the Central Coast region of New South Wales, the Offender did have sexual intercourse with Emma, without the consent of Emma, knowing that she was not consenting, in circumstances of aggravation, namely that at the time of the offending Emma was a person under the age of 16 years, namely 13 years, in breach of s61J(1) of the Crimes Act.
Count 5 against the Offender on the Indictment to which he has pleaded guilty is that between 1 June 2016 and 31 December 2016, at a residence in the Northern Sydney region…

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 Mr (a pseudonym)

Details

AGLC: R v Mr (a pseudonym) [2019] NSWDC 440
Case: [2019] NSWDC 440
Decision Date: 02 May 2019

CaseChat Overview and Summary

In the case of R v Mr (a pseudonym), the appellant faced a series of serious charges, including multiple counts of aggravated indecent assault and aggravated sexual assault, as well as causing a victim to take an intoxicating substance and producing child abuse material. The matter was heard and determined in the Supreme Court of New South Wales, with the presiding judge tasked with determining an appropriate sentence. The court was required to navigate complex issues surrounding the nature and extent of the crimes, the appellant's level of insight into his actions, and the degree of remorse demonstrated. The decision hinged on weighing these factors against the principles of justice and deterrence, with particular attention paid to the impact of the crimes on the victims and the community.

The primary legal issues that the court addressed were the appropriate weight to be given to the appellant's insight and remorse, and how these factors should influence the severity of the sentence. The appellant's legal team argued that he had shown significant insight into the wrongfulness of his actions and had expressed genuine remorse. In contrast, the prosecution contended that the appellant's actions were premeditated and calculated, and that the level of insight and remorse was insufficient to warrant a lesser sentence. The court needed to carefully consider the evidence and arguments presented to determine the appropriate balance between these factors in sentencing.

In reaching its decision, the court thoroughly examined the evidence regarding the appellant's insight and remorse. It considered the statements made by the appellant during the trial and sentencing hearing, as well as expert psychological evaluations. The court also took into account the severity and frequency of the crimes, the vulnerability of the victims, and the need to deter similar conduct in the future. Ultimately, the court found that while the appellant had shown some level of insight and remorse, it was not sufficient to significantly mitigate the severity of the sentence. The court imposed a sentence that reflected the gravity of the crimes and aimed to serve the principles of justice and deterrence.

The final orders of the court, as indicated at [177], included the imposition of a custodial sentence, with specific details regarding the length and conditions of the imprisonment. The court also made orders for the appellant to participate in rehabilitation programs and comply with other specified requirements, aimed at addressing the underlying issues that contributed to the offending behaviour and reducing the risk of reoffending. The orders also included provisions for monitoring and supervision post-release, ensuring that the appellant remains accountable for his actions and contributes to the safety and well-being of the community.

Orders

Orders of the court

At [177]

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 MR (a pseudonym) [2019] NSWDC 440
Hearing dates:	14 March 2019
Date of orders:	02 May 2019
Decision date:	02 May 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [177]
Catchwords:	CRIMINAL LAW – sentencing – aggravated indecent assault – aggravated sexual assault with a Form 1 – cause to take intoxicating substance – produce child abuse material – nine counts – questions of insight and remorse
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
Cases Cited:	Cahyadi v R (2007) 168 A Crim R 41 Minehan v R (2010) 201 A Crim R 243 Pearce v The Queen (1998) 194 CLR 610 R v BJW (2000) 112 A Crim R 1 R v Lulham (2016) 263 A Crim R 287 Re Attorney General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) MR (a pseudonym) (Offender)
Representation:	Counsel: Ms K Tennant (Crown) Mr A Radojev (Offender) Solicitors: ODPP (Crown) P Williams and Company Lawyers (Offender)
File Number(s):	2017/13664
Publication restriction:	Non-Publication Order of the name of the Offender who will be known as ‘MR’ and the complainants. The identity of the complainants will be further restricted by referring to them as Lucy and Emma.