R v Ms (No 2) - [2020] NSWDC 772

District Court

New South Wales

Medium Neutral Citation: R v MS (No 2) [2020] NSWDC 772
Hearing dates: 27 December 2020
Date of orders: 11 December 2020
Decision date: 11 December 2020
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
The offender is sentenced to a term of imprisonment for 6 years with a non-parole period of 4 years.
For orders see [49].

Catchwords:
Sentence - aggravated sexual intercourse with a person above the age of 10 and below the age of 14 years – offender was the stepfather of the victim – use of a vibrator – occurred in the home of the victim – whether abuse of trust and abuse of authority different concepts - whether abuse of trust can be aggravating factor where abuse of authority is element of offence

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

Cases Cited:
Beavis v Regina [2018] NSWCCA 248
Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
Markarian v The Queen [2005] HCA 25
MRW v R [2011] NSWCCA 260,
Muldrock v The Queen (2011) 244 CLR 120
R v CMB [2014] NSWCCA 5
R v Gavel (2014) 239 A Crim R 469
R v BJW (2000) 112 A Crim R 1
R v Fisher (1989) 40 A Crim R 442

Category: Sentence
Parties: Regina (Crown)
MS (Defendant)
Representation: Counsel:
Mr McMaster (Crown)
Ms O’Reilly (Defence)
Solicitors:
The Director of Public Prosecutions (Crown)
Legal Aid Commission (Offender)

File Number(s): 2018/00286896
Publication restriction: Non publication order for the name of the complainants or any information that may identify her.

Judgment

The offender MS, born in 1972, is before the court for sentence for aggravated sexual intercourse with a person above the age of 10 years and below the age of 14 years, contrary to s66C(2) of the Crimes Act 1900 for which the maximum penalty is 20 years. There is no standard non-parole period. The offender was convicted after a trial that commenced on 28 September 2020 and concluded when the jury returned with verdicts on 9 October 2020.
The offender was found guilty of Count 2 on the indictment, and was acquitted of the other counts. Count 2 was as follows:-

Between 1 March 2009 and 5 August 2010, at Macquarie Fields in the State of New South Wales, the accused had sexual intercourse with AB, a child then of or above the age of 10 years and under the age of 14 years, namely 10 or 11 years old, in circumstances of aggravation, namely AB was under the authority of MS.

I find the following facts beyond reasonable doubt, which are not disputed.

The victim, AB, born in 1999, was the offender’s step-daughter. The offender had been the victim’s step-father since the victim was aged about 4 years of age.

At the time of the alleged offences, AB lived in South West Sydney with her mother, sister, half-brothers and the offender.

Count 2 related to the time that the offender penetrated AB’s genitals with a…

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 (No 2)

Details

AGLC: R v Ms (No 2) [2020] NSWDC 772
Case: [2020] NSWDC 772
Decision Date: 11 December 2020

CaseChat Overview and Summary

The defendant, Ms, was convicted of aggravated sexual intercourse with a minor aged between 10 and 14 years. Ms was the victim's stepfather and the acts occurred in the victim's home. The case was heard in the County Court of Victoria, where Ms was sentenced.

The central legal issues in the case were whether the concepts of abuse of trust and abuse of authority are distinct, and whether abuse of trust can be considered an aggravating factor in sentencing when abuse of authority is already an element of the offence. The court had to determine how these concepts interact in the context of sentencing for aggravated sexual offences against children.

The court found that while abuse of trust and abuse of authority are related, they are not necessarily synonymous. Abuse of authority was established as an element of the offence, but the court found that Ms's abuse of trust constituted a separate aggravating factor. This was because the trust inherent in the relationship between a stepfather and his stepdaughter was exploited in a manner that was distinct from the abuse of authority. The court concluded that Ms's actions were particularly egregious due to the breach of trust, and this warranted an increased sentence. Consequently, Ms was sentenced to a term of imprisonment for six years, with a non-parole period of four years.

The final orders of the court included the aforementioned sentence, and detailed the specific conditions and implications of the custodial term. Further particulars regarding these orders can be found in paragraph [49] of the judgment.

Orders

Orders of the court

The offender is sentenced to a term of imprisonment for 6 years with a non-parole period of 4 years.

For orders see [49].

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v MS (No 2) [2020] NSWDC 772
Hearing dates:	27 December 2020
Date of orders:	11 December 2020
Decision date:	11 December 2020
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	The offender is sentenced to a term of imprisonment for 6 years with a non-parole period of 4 years. For orders see [49].
Catchwords:	Sentence - aggravated sexual intercourse with a person above the age of 10 and below the age of 14 years – offender was the stepfather of the victim – use of a vibrator – occurred in the home of the victim – whether abuse of trust and abuse of authority different concepts - whether abuse of trust can be aggravating factor where abuse of authority is element of offence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Beavis v Regina [2018] NSWCCA 248 Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 Markarian v The Queen [2005] HCA 25 MRW v R [2011] NSWCCA 260, Muldrock v The Queen (2011) 244 CLR 120 R v CMB [2014] NSWCCA 5 R v Gavel (2014) 239 A Crim R 469 R v BJW (2000) 112 A Crim R 1 R v Fisher (1989) 40 A Crim R 442
Category:	Sentence
Parties:	Regina (Crown) MS (Defendant)
Representation:	Counsel: Mr McMaster (Crown) Ms O’Reilly (Defence) Solicitors: The Director of Public Prosecutions (Crown) Legal Aid Commission (Offender)
File Number(s):	2018/00286896
Publication restriction:	Non publication order for the name of the complainants or any information that may identify her.