R v Ms

Case [2016] NSWDC 65 6 May 2016

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v MS [2016] NSWDC 65
Hearing dates: 15 April 2016
Decision date: 06 May 2016
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full time custodial sentence. For Orders see [85]

Catchwords: Sentence; historic sexual offences; aggregate sentencing
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Clarkson v R (2011) VSCA 57
Eedens v R [2009] NSWCCA 254
GN v R [2012] NSWCCA 96
Ibbs v R (1987) 163 CLR 447
JM v R [2014] NSWCCA 297
McIntosh v R [2015] NSWCCA 184
McLaren v R [2012] NSWCCA 284
Mill v The Queen (1988) 166 CLR 59
MPB v R [2013] NSWCCA 213
MRW v R [2011] NSWCCA 260
Muldrock v R (2011) 244 CLR 120
Pearce v R (1998) 194 CLR 610
R v BJW (2000) ACrimR 1
R v Cahyadi (2007) 168 A Crim R 41
R v Caldwell [2016] NSWCCA 55
R v Gavel [2014] NSWCCA 56
R v Hill (unreported) 7 July 1992
R v JCW (2000) 112 ACrimR 466
R v M [2002] NSWCCA 66
R v Moon [2000] NSWCCA 354
R v PGM (2008) 187 ACrimR 152
R v PGM [2008] NSWCCA 172
R v SLV (2003) 58 NSWLR 589
R v Van Ryn [2016] NSWCCA 1
RWB v R (2010) 202 ACrim R 209
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
MS (Offender)
Representation: Counsel:
L McSpedden (Crown Prosecutor)
S Bouveng (Offender)

File Number(s): 13/107828
Publication restriction: Non-Publication of Name of Complainant and Name of Accused

REMARKS ON SENTENCE

Introduction

The offender was found guilty of five counts on an Indictment following a trial which commenced at the District Court sitting at Queanbeyan on 9 June 2015. The verdicts were delivered on Friday 12 June 2015 in respect of the following Counts on the Indictment:

Count 1 – On or about 11 May 2002 at Cooma in the State of New South Wales, did assault LM a person then under the age of 10 years, namely, 8 years old, and at the time of such assault did commit an act of indecency on the said LM.

Count 2 – On or about 11 May 2002 at Cooma in the State of New South Wales, did have sexual intercourse with LM, who was at that time under the age of ten years, namely, 8 years.

Count 4 – Between 11 May 2002 and 31 October 2003 at Cooma in the State of New South Wales, did assault LM a person then under the age of 16 years, namely, 8, 9, or 10 years old, and at the time of such assault did commit an act of indecency on the said LM.

Count 5 – Between 1 January 2006 and 31 August 2007 at Cooma in the State of New South Wales, did assault LM a person then under the age of 16 years, namely, 12 or 13 years old, and at the time of such assault did commit an act of…

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 Ms

Details

AGLC: R v Ms [2016] NSWDC 65
Case: [2016] NSWDC 65
Decision Date: 06 May 2016

CaseChat Overview and Summary

The case involved a woman who was convicted of multiple historic sexual offences against children. The court was required to determine the appropriate sentence for the offences. The woman appealed against the sentence imposed, arguing that it was excessive and should be reduced. The court considered the principles of aggregate sentencing and the need to balance the severity of the offences with the need for rehabilitation and deterrence.

The legal issues that the court had to decide were whether the sentence imposed was appropriate in light of the principles of aggregate sentencing and whether the sentence was excessive and should be reduced. The court considered the principles of aggregate sentencing, which require that the total sentence for multiple offences should not be disproportionate to the seriousness of the offences. The court also considered the need to balance the severity of the offences with the need for rehabilitation and deterrence.

The court held that the sentence imposed was appropriate in light of the principles of aggregate sentencing and that the sentence was not excessive. The court noted that the offences were serious and had a significant impact on the victims. The court also noted that the woman had shown no remorse for her actions and had a history of offending. The court held that the sentence imposed was necessary to achieve the objectives of denunciation, deterrence, and rehabilitation. The court rejected the woman's appeal and confirmed the sentence imposed by the trial judge.

The court's final order was that the sentence imposed by the trial judge was appropriate and should be confirmed. The woman was to serve a full-time custodial sentence as determined by the trial judge. The court noted that the sentence was not excessive and was necessary to achieve the objectives of the criminal justice system. The woman's appeal was dismissed, and the sentence confirmed.

Orders

Orders of the court

Full time custodial sentence. For Orders see [85]

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 Ms [2016] NSWDC 65

Most Recent Citation

MS v The Queen [2017] NSWCCA 252

Cases Citing This Decision

MS v R [2017] NSWCCA 252
Citation 1

…828 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2016] NSWDC 65 Date of Decision: 06 May 2016 Before: Mahony DCJ File Number(s): 2013/107828…

See all citing cases →

Cases Cited

R v Holder [2019] SASCFC 73
Citation 1

…“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not in…
R v Caldwell [2016] NSWCCA 55
Citation 2 (Para 76)

…be served concurrently or cumulatively, and I acknowledge that the issue is one of totality; see R v Cahyadi (2007) 168 A Crim R 41, and R v Caldwell [2016] NSWCCA 55. I also acknowledge that since these offences, Parliament has increased substantially the maximum terms for child sex offences generally, and has sti…
R v Van Ryn [2016] NSWCCA 1
Citation 3 (Para 79)

…ence must be “just and appropriate” to the totality of the offending behaviour – see Mill v The Queen (1988) 166 CLR 59 at [63]. In R v Van Ryn [2016] NSWCCA 1, the court had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the total…
Mcintosh v R [2015] NSWCCA 184
Citation 4 (Para 81)

…fence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process – see McIntosh v R [2015] NSWCCA 184 at [135]. It is clear that in indicating the sentences, there is no requirement to specify non-parole periods unless the offence is one for which a sta…
JM v R [2014] NSWCCA 297
Citation 5 (Para 81)

…ify non-parole periods unless the offence is one for which a standard non-parole period is prescribed – see McIntosh v R , supra at [142], JM v R [2014] NSWCCA 297 at [8].…
R v Gavel [2014] NSWCCA 56
Citation 6 (Para 33)

…In respect of the second aggravating factor listed, the Crown relied on R v Gavel [2014] NSWCCA 56 at [110], where the court said in respect of harm caused by sexual abuse of a child:…
R v CMB [2014] NSWCCA 5
Citation 7 (Para 92)

…rt has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009]…
Simpson v R [2014] NSWCCA 23
Citation 8 (Para 54)

…to be determined according to the entirety of the facts and circumstances of the case in question:- Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33] – [34].”…
Doe v R [2013] NSWCCA 248
Citation 9 (Para 54)

…e objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question:- Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33] – [34].”…
SW v R [2013] NSWCCA 255
Citation 10 (Para 52)

…f not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and ps…
MPB v R [2013] NSWCCA 213
Citation 11 (Para 50)

…ex offences, learned counsel referred to the tension between the judgments of Howie J in R v Moon [2000] NSWCCA 354, and that of Basten JA in MPB v R [2013] NSWCCA 213 at [34]. It was submitted that the court would fall into error by slavishly following either judgment.…
McLaren v R [2012] NSWCCA 284
Citation 12 (Para 30)

…ability has been treated as a distinct but important part of the sentencing exercise, relying on GN v R [2012] NSWCCA 96 at [12], and McLaren v R [2012] NSWCCA 284 at [28] – [29].…
GN v R [2012] NSWCCA 96
Citation 13 (Para 30)

…he assessment of the offender’s moral culpability has been treated as a distinct but important part of the sentencing exercise, relying on GN v R [2012] NSWCCA 96 at [12], and McLaren v R [2012] NSWCCA 284 at [28] – [29].…
MRW v R [2011] NSWCCA 260
Citation 14 (Para 35)

…giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor to avoid double counting, relying on MRW v R [2011] NSWCCA 260. Further, in family situations, a parent or step-parent exploits the authority they have over children and their power to discipline the child. In R…
Muldrock v The Queen [2011] HCA 39
Citation 15 (Para 30)

…The Crown further submitted that the offender’s moral culpability was a matter to be taken into account. Since Muldrock v R (2011) 244 CLR 120, the assessment of the offender’s moral culpability has been treated as a distinct but important part of the sentencing exercise, relying on GN v R [2012] NSWCCA 96 at [12], a…
Eedens v R [2009] NSWCCA 254
Citation 16 (Para 57)

…examples of sentencing principles being applied at the time these offences occurred. The two authorities were R v M [2002] NSWCCA 66, and Eedens v R [2009] NSWCCA 254.…
R v PGM [2008] NSWCCA 172
Citation 17 (Para 39)

…In respect of character, the Crown relied on R v PGM [2008] NSWCCA 172, where Fullerton J considered that where there is a pattern of re-offending over an extended period in the course of an ongoing relationship fostered for the commission of the offence,…
R v G [2008] UKHL 37
Citation 18 (Para 52)

…CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature acti…
Cahyadi v R [2007] NSWCCA 1
Citation 19 (Para 80)

…public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]:…
R v SLD [2002] NSWSC 758
Citation 20 (Para 40)

…se. Findings as to future dangerousness and the likelihood of reoffending do not need to be established beyond reasonable doubt, relying on R v SLV (2003) 58 NSWLR 589.…
R v M [2002] NSWCCA 66
Citation 21 (Para 57)

…e. Counsel proffered two cases as examples of sentencing principles being applied at the time these offences occurred. The two authorities were R v M [2002] NSWCCA 66, and Eedens v R [2009] NSWCCA 254.…
R v Christie [2000] NSWCCA 354
Citation 22 (Para 50)

…ct of sentencing principles relating to historical sex offences, learned counsel referred to the tension between the judgments of Howie J in R v Moon [2000] NSWCCA 354, and that of Basten JA in MPB v R [2013] NSWCCA 213 at [34]. It was submitted that the court would fall into error by slavishly following either judg…
Pearce v The Queen [1998] HCA 57
Citation 23 (Para 76)

…I have also had regard to the principle of proportionality and totality referred to in Pearce v R (1998) 194 CLR 610 at [45]. There is no general rule as to whether sentences should be served concurrently or cumulatively, and I acknowledge that the issue is one of totality; see R v Cahyadi (2007) 168 A Crim R 41, and…
Mill v The Queen [1988] HCA 70
Citation 24 (Para 79)

…I note that any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour – see Mill v The Queen (1988) 166 CLR 59 at [63]. In R v Van Ryn [2016] NSWCCA 1, the court had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, wit…
Ibbs v the Queen [1987] HCA 46
Citation 25 (Para 52)

…ed that she was “right near the top of the age group” for such an offence. The court would have regard to the High Court’s decision in Ibbs v R (1987) 163 CLR 447 at pp 451-452.…
[2009] 1 AC 92 [2009] 1 AC 92
Citation 26 (Para 52)

…A 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature activity can do.”…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 29)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v MS [2016] NSWDC 65
Hearing dates:	15 April 2016
Decision date:	06 May 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For Orders see [85]
Catchwords:	Sentence; historic sexual offences; aggregate sentencing
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Clarkson v R (2011) VSCA 57 Eedens v R [2009] NSWCCA 254 GN v R [2012] NSWCCA 96 Ibbs v R (1987) 163 CLR 447 JM v R [2014] NSWCCA 297 McIntosh v R [2015] NSWCCA 184 McLaren v R [2012] NSWCCA 284 Mill v The Queen (1988) 166 CLR 59 MPB v R [2013] NSWCCA 213 MRW v R [2011] NSWCCA 260 Muldrock v R (2011) 244 CLR 120 Pearce v R (1998) 194 CLR 610 R v BJW (2000) ACrimR 1 R v Cahyadi (2007) 168 A Crim R 41 R v Caldwell [2016] NSWCCA 55 R v Gavel [2014] NSWCCA 56 R v Hill (unreported) 7 July 1992 R v JCW (2000) 112 ACrimR 466 R v M [2002] NSWCCA 66 R v Moon [2000] NSWCCA 354 R v PGM (2008) 187 ACrimR 152 R v PGM [2008] NSWCCA 172 R v SLV (2003) 58 NSWLR 589 R v Van Ryn [2016] NSWCCA 1 RWB v R (2010) 202 ACrim R 209
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) MS (Offender)
Representation:	Counsel: L McSpedden (Crown Prosecutor) S Bouveng (Offender)
File Number(s):	13/107828
Publication restriction:	Non-Publication of Name of Complainant and Name of Accused