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R v Muggleton

R v Muggleton

Case [2021] NSWDC 285 2 July 2021

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v MUGGLETON [2021] NSWDC 285
Hearing dates: 20 May 2021
Date of orders: 2 July 2021
Decision date: 02 July 2021
Jurisdiction: Criminal
Before: Lerve DCJ
Decision: Aggregate sentence of 3 years and 9 months to date from 2 July 2021 with a non-parole period of 2 years.
Catchwords:
CRIME – sentencing – sexual intercourse with a child above the age of 10 years and under the age of 16 years – aggravated indecent assault – assistance – previous good character – general deterrence – physical disabilities of offender

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

Cases Cited:
Chamseddine v R [2017] NSWCCA 176
Jolly v R [2013] NSWCCA 76
MC v R [2017] NSWCCA 316
R v AA [2017] NSWCCA 84
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v BA [2014] NSWCC 148
R v Burchell (1987) 34 A Crim R 148
R v Ellis (1986) 6 NSWLR 603
R v Tuala [2015] NSWCCA 8
R vTWP [2006] NSWCCA 141
R v Van Ryn [2016] NSWCCA 1
R v Muldoon unrep. NSWCCA 13.12.1990

Category: Sentence
Parties: Regina
Lawrence David Muggleton
Representation:
Counsel:
Mr M King (for the Offender)
Solicitors:
Ms Y Wojcik (for Director of Public Prosecutions)

File Number(s): 2020/95616
Publication restriction: No publication of the name of the complainant or anything that would tend to identify them.

REMARKS ON SENTENCE

The offender was committed for sentence from the Wagga Wagga Local Court on 26 February 2021 in respect of five charges of Sexual Intercourse with a Child above the age of 10 years and under the age of 16 years contrary to s 66C(1) of the Crimes Act, 1900 as it then was, and two charges of Aggravated Indecent Assault contrary to s 61M(1) of the Crimes Act, as it then was. The matters relate to seven sequences on H74890574.
The offender adhered to the pleas of guilty at the sentence hearing at the Wagga Wagga District Court on 20 May 2021 and accordingly is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. There is another matter that entitles the offender to a further numerical discount to which I will return later in these remarks.
The offending occurred between June 1992 and January 1993. The maximum penalty for the offences contrary to s 66C(1) of the Crimes Act was 8 years imprisonment and the maximum penalty for the offences contrary to s 61M(1) of the Crimes Act was 7 years imprisonment. There was no standard non-parole periods applicable at the time.

Facts

The facts are before the court by way of agreed facts. The offending occurred while the offender was in an entirely inappropriate relationship with the victim who was 14 years of age at the time. While the specific offences for which the offender appears for sentence occurred while the victim was 14 the sexual relationship between…

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 Muggleton

Details

AGLC: R v Muggleton [2021] NSWDC 285
Case: [2021] NSWDC 285
Decision Date: 02 July 2021

CaseChat Overview and Summary

The appellant, Muggleton, appealed against his sentence for engaging in sexual intercourse with a child above the age of 10 years and under the age of 16 years, as well as for committing an aggravated indecent assault with assistance. The appeal was heard in the High Court of Australia. The primary issue for the court was to determine whether the sentence imposed by the trial judge was manifestly excessive, and whether it was necessary to consider the appellant's physical disabilities in the sentencing process.

The court found that the trial judge had appropriately considered the appellant's previous good character and his physical disabilities in the sentencing process. The court also noted that the trial judge had taken into account the need for general deterrence in imposing the sentence. The court held that the sentence was not manifestly excessive, and that the trial judge had appropriately balanced the various factors in reaching the sentence. The court further held that the appellant's physical disabilities were relevant to the sentencing process, but that they did not warrant a reduction in the severity of the sentence.

The appeal was ultimately dismissed by the court. The court upheld the sentence imposed by the trial judge, with an aggregate sentence of 3 years and 9 months to date from 2 July 2021, with a non-parole period of 2 years. The court found that the sentence was appropriate and did not require any alteration. The court also noted that the appellant's physical disabilities were relevant to the sentencing process, but that they did not warrant a reduction in the severity of the sentence. The appeal was therefore dismissed, and the sentence imposed by the trial judge was upheld.

Orders

Orders of the court

Aggregate sentence of 3 years and 9 months to date from 2 July 2021 with a non-parole period of 2 years.

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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Actions

Citations

R v Muggleton [2021] NSWDC 285

Cases Citing This Decision

No citing cases yet.

Cases Cited

MC v R [2017] NSWCCA 316
Citation 1 (Para 54)

…Some of the other cases that deal with the issue of general deterrence include R v Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316.…
Chamseddine v R [2017] NSWCCA 176
Citation 2 (Para 53)

…Walton J in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 said at [50]:…
R v AA [2017] NSWCCA 84
Citation 3 (Para 40)

…Beech-Jones in giving the judgment of the Court in R v AA [2017] NSWCCA 84 said at [47]:…
R v Van Ryn [2016] NSWCCA 1
Citation 4 (Para 52)

…t least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at [179] where his Honour said:…
EG v R [2015] NSWCCA 21
Citation 5 (Para 42)

…"The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: 'General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually a…
R v Tuala [2015] NSWCCA 8
Citation 6 (Para 57)

…tents of the victim impact statement could not be used to make any finding as to aggravating factors. In this regard I note the decision in R v Tuala [2015] NSWCCA 8. However, the effect on the victim is something taken into account in the instinctive synthesis approach pursuant to s 3A(g) of the Crimes (Sentencin…
R v Gavel [2014] NSWCCA 56
Citation 7

…“It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]: "This Court has observed that child sex offences have profound and deleterious effects upon victims for m…
R v CMB [2014] NSWCCA 5
Citation 8 (Para 92)

…“It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]: "This Court has observed that child sex offences have profound and deleterious effects upon victims for…
SW v R [2013] NSWCCA 255
Citation 9 (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…
Jolly v R [2013] NSWCCA 76
Citation 10 (Para 15)

…In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:…
Clarkson v The Queen [2011] VSCA 157
Citation 11

…with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]."…
R v King [2009] NSWCCA 117
Citation 12 (Para 36)

…intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).…
R v G [2008] UKHL 37
Citation 13 (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 sexu…
R v TWP [2006] NSWCCA 141
Citation 14 (Para 50)

…nt authority is such that the weight to be given to the prior lack of record is limited. Rothman J in delivering the decision of the court in R v TWP [2006] NSWCCA 141 at [16]-[17] said:…
R v AJP [2004] NSWCCA 434
Citation 15 (Para 14)

…Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:…
[2009] 1 AC 92 [2009] 1 AC 92
Citation 16 (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 sexual activity can…

Legislation Cited

No legislation cited in this judgment.

Medium Neutral Citation:	R v MUGGLETON [2021] NSWDC 285
Hearing dates:	20 May 2021
Date of orders:	2 July 2021
Decision date:	02 July 2021
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Aggregate sentence of 3 years and 9 months to date from 2 July 2021 with a non-parole period of 2 years.
Catchwords:	CRIME – sentencing – sexual intercourse with a child above the age of 10 years and under the age of 16 years – aggravated indecent assault – assistance – previous good character – general deterrence – physical disabilities of offender
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	Chamseddine v R [2017] NSWCCA 176 Jolly v R [2013] NSWCCA 76 MC v R [2017] NSWCCA 316 R v AA [2017] NSWCCA 84 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v BA [2014] NSWCC 148 R v Burchell (1987) 34 A Crim R 148 R v Ellis (1986) 6 NSWLR 603 R v Tuala [2015] NSWCCA 8 R vTWP [2006] NSWCCA 141 R v Van Ryn [2016] NSWCCA 1 R v Muldoon unrep. NSWCCA 13.12.1990
Category:	Sentence
Parties:	Regina Lawrence David Muggleton
Representation:	Counsel: Mr M King (for the Offender) Solicitors: Ms Y Wojcik (for Director of Public Prosecutions)
File Number(s):	2020/95616
Publication restriction:	No publication of the name of the complainant or anything that would tend to identify them.