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R v Mullins

R v Mullins

Case [2024] NSWDC 672 3 October 2024

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District Court

New South Wales

Medium Neutral Citation: R v Mullins [2024] NSWDC 672
Hearing dates: 30 August 2024
Date of orders: 3 October 2024
Decision date: 03 October 2024
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Head sentence of 10 years with a non-parole period of 6 years and 6 months, at [159] – [162].

Catchwords:
SENTENCING — Child sex offences, 11 counts — Sentence following jury trial — Elderly offender — Offences committed by offender between his late 60s to early 80s — Two complainants — No contrition or remorse for offences to which offender pleaded Not Guilty at trial — No prior criminal history — Abuse of position of trust between complainants and offender — Element of grooming — Offender paid one complainant for sexual acts — Offender provided other complainant with gifts — Significance of general deterrence for child sexual abuse offences.

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M, 61N, 66A, 66C, 66DD
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited: Anastasiou v R [2010] NSWCCA 100
GAT v R [2007] NSWCCA 208
GS v R [2016] NSWCCA 266
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Antin (a pseudonym) (No 2) [2021] NSWDC 584
R v BJW (2000) 112 A Crim R 1; [2000] NSWCCA 60
R v Fisher (1989) 40 A Crim R 442
R v MJ [2023] NSWCCA 306
R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172
R v Thomas [2007] NSWCCA 269
Scrimshaw (a pseudonym) v R [2021] NSWCCA 81
Category: Sentence
Parties: Rex (Crown)
Brian Audley Mullins (Offender)
Representation:
Counsel:
F Vella (Crown)
D Stewart (Offender)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Ross Hill & Associate Solicitors (Offender)

File Number(s): 2022/00140921
Publication restriction: There is to be no publication of a name that identifies or is likely to lead to the identification of the complainants in accordance with section 578A of the Crimes Act 1900 and section 15A(1) of the Children (Criminal Proceedings) Act 1987.

JUDGMENT

My oral Remarks on Sentence with respect to the child victims of the offenders' sexual abuse will refer to each of the complainants on occasion by name. There is, however, a statutory prohibition against the publication of any of the names of the victims or of material tending to identify them pursuant to section 578A of the Crimes Act 1900. Accordingly, my published Remarks will include redactions where necessary. References in this judgment to victim or complainant is used interchangeably.
The offender, Brian Audley Mullins, appears for sentence in respect of 11 offences committed against two female children who were then under the age of 16 years. The offences occurred some 18 years ago in 2006 with respect to the first victim who was 8 years of age at the time. The offender was 68 at the time of that offending. The more recent offending occurred…

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 Mullins

Details

AGLC: R v Mullins [2024] NSWDC 672
Case: [2024] NSWDC 672
Decision Date: 03 October 2024

CaseChat Overview and Summary

In the case of R v Mullins, the defendant was convicted on 11 counts of sexual offences involving children, with the crimes occurring over a period spanning from the defendant's late 60s to early 80s. The victims were two individuals who were in a position of trust relative to the defendant, and the offences included elements of grooming, with one victim receiving payment for sexual acts and the other receiving gifts. The defendant entered a plea of not guilty at trial and showed no contrition or remorse for the offences. The defendant had no prior criminal history. The case was heard in a higher court where the sentencing of the defendant was the primary issue.

The legal issues before the court were the appropriate sentence for the defendant, given the severity and number of offences, the lack of remorse, the abuse of a position of trust, and the need for general deterrence in cases of child sexual abuse. The court had to balance the gravity of the crimes with the defendant's age, lack of prior criminal history, and the absence of contrition. The court also had to consider the impact of the crimes on the victims and the community.

In determining the sentence, the court emphasised the importance of general deterrence in cases of child sexual abuse, given the significant harm caused to the victims and the community. The court noted the defendant's lack of remorse and the absence of any mitigating factors such as a prior criminal history. The court found the defendant's age and lack of prior criminal history to be some mitigating factors but held that these did not outweigh the severity of the crimes. The court ultimately imposed a head sentence of 10 years with a non-parole period of 6 years and 6 months, recognising the need for a significant custodial sentence to reflect the seriousness of the offences and to provide general deterrence.

The court ordered that the defendant serve a head sentence of 10 years with a non-parole period of 6 years and 6 months. This reflects the court's view that the crimes were of high severity and required a substantial custodial sentence to achieve the aims of punishment, including general deterrence and protection of the community.

Orders

Orders of the court

Head sentence of 10 years with a non-parole period of 6 years and 6 months, at [159] – [162].

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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Citations

R v Mullins [2024] NSWDC 672

Most Recent Citation

R v Tyler [1992] QCA 170

Cases Citing This Decision

R v Tyler [1992] QCA 170
Citation 1

…Reg. v. Mullins (1848) 3 Cox C.C. 526, involved two classes of witnesses. Some had been involved as Chartists in the alleged illegal activity and had turned against their former associates. Maule J. described these as "accomplices". Two other witnesses had joined in the meetings in order to communic…

See all citing cases →

Cases Cited

R v MJ [2023] NSWCCA 306
Citation 1 (Para 134)

…R v MJ [2023] NSWCCA 306 was a Crown appeal against inadequacy. The offender was 38 years of age and the victim was 10 years old. The offender lived occasionally with the mother of the victim at her house. On one specific day the offender had taken the 10-year-old victim with him to a service station where he had ta…
R v Antin (a pseudonym) (No 2) [2021] NSWDC 584
Citation 2 (Para 141)

…R v Antin (a pseudonym) (No 2) [2021] NSWDC 584 is the case to which I referred earlier involving a 90-year-old offender. Antin was suffering from significant cognitive impairment dementia and was found “unfit to be tried” by Acting Judge Woods QC in March 2021. A special hearing was conducted by Judge Haesler SC i…
Scrimshaw (a pseudonym) v The Queen [2021] NSWCCA 81
Citation 3 (Para 130)

…Scrimshaw (a pseudonym) v R [2021] NSWCCA 81 concerned an offender who was 59 years of age. The abuse of trust was more extreme involving, amongst other offending, penile/vaginal penetration of his natural daughter when she was between the ages of approximately 10 and 14. The offender had also served a period of im…
GS v R [2016] NSWCCA 266
Citation 4 (Para 151)

…In GS v R [2016] NSWCCA 266, to which Judge Haesler SC had also referred, the offender was 67 years of age at the time of sentence. He was frail and suffering from chronic kidney disease as well as a number of other serious medical conditions.…
Munda v Western Australia [2013] HCA 38
Citation 5

…Cases Cited: Anastasiou v R [2010] NSWCCA 100 GAT v R [2007] NSWCCA 208 GS v R [2016] NSWCCA 266 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Antin (a pseudonym) (No 2) [2021] NSWDC 584 R v BJW (2000) 112 A Crim R 1; [2000] NSWCCA 60 R v Fisher (1989) 40 A Crim R 442 R v MJ [2023] NSWCCA 306 R v M…
R v McEvoy [2010] NSWCCA 110
Citation 6

…for some, although I suspect not for many in the community, it is not the test the Court must apply. The Court must apply principle: Anastasiou v R [2010] NSWCCA 110. It is not for this Court to impose an inappropriate sentence in order to give an ill or elderly offender hope of release before his death: GS v R [201…
Anastasiou v R [2010] NSWCCA 100
Citation 7 (Para 149)

…It is respectfully pointed out that the citation in his Honour’s judgment to Anastasiou is incorrect. The correct citation is Anastasiou v R [2010] NSWCCA 100. Anastasiou did not involve sexual offending. Sentences had been imposed for a substantial number of offences of larceny and related offending. At the time of…
R v PGM [2008] NSWCCA 172
Citation 8 (Para 63)

…o the nature and character of the assault, including the degree of physical contact which is involved: see GAT v R [2007] NSWCCA 208 at [22]; R v PGM [2008] NSWCCA 172 at [31].…
R v Thomas [2007] NSWCCA 269
Citation 9 (Para 126)

…the offender, it is appropriate to give relevant weight to each of the victim impact statements which have been read to this Court (see R v Thomas [2007] NSWCCA 269 per Basten JA at [37], Latham J agreeing).…
GAT v R [2007] NSWCCA 208
Citation 10 (Para 63)

…s important to give consideration to the nature and character of the assault, including the degree of physical contact which is involved: see GAT v R [2007] NSWCCA 208 at [22]; R v PGM [2008] NSWCCA 172 at [31].…
R v MJR [2002] NSWCCA 129
Citation 11 (Para 66)

…Mason P, in R v MJR [2002] 54 NSWLR 368; [2002] NSWCCA 129 at [57] described the pattern of increasing sentences as having:…
R v MJK [2001] NSWCCA 325
Citation 12

…SWDC 584 R v BJW (2000) 112 A Crim R 1; [2000] NSWCCA 60 R v Fisher (1989) 40 A Crim R 442 R v MJ [2023] NSWCCA 306 R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 R v Thomas [2007] NSWCCA 269 Scrimshaw (a pseudonym) v R [2021] NSWCCA 81 Category: Sentence Parties: Rex…
R v BJW [2000] NSWCCA 60
Citation 13 (Para 64)

…en repeatedly stated and is reflected in a very large number of appellate judgments of the NSW Court of Criminal Appeal. Sheller JA stated in R v BJW [2000] NSWCCA 60 at [20]:…

Legislation Cited

Crimes Act 1900 (ACT) 61M, 61N, 66A, 66C, 66DD
6 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
2 mentions (from Para 67)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
1 mention (from Para 145)

Medium Neutral Citation:	R v Mullins [2024] NSWDC 672
Hearing dates:	30 August 2024
Date of orders:	3 October 2024
Decision date:	03 October 2024
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Head sentence of 10 years with a non-parole period of 6 years and 6 months, at [159] – [162].
Catchwords:	SENTENCING — Child sex offences, 11 counts — Sentence following jury trial — Elderly offender — Offences committed by offender between his late 60s to early 80s — Two complainants — No contrition or remorse for offences to which offender pleaded Not Guilty at trial — No prior criminal history — Abuse of position of trust between complainants and offender — Element of grooming — Offender paid one complainant for sexual acts — Offender provided other complainant with gifts — Significance of general deterrence for child sexual abuse offences.
Legislation Cited:	Crimes Act 1900 (NSW), ss 61M, 61N, 66A, 66C, 66DD Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Anastasiou v R [2010] NSWCCA 100 GAT v R [2007] NSWCCA 208 GS v R [2016] NSWCCA 266 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Antin (a pseudonym) (No 2) [2021] NSWDC 584 R v BJW (2000) 112 A Crim R 1; [2000] NSWCCA 60 R v Fisher (1989) 40 A Crim R 442 R v MJ [2023] NSWCCA 306 R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 R v Thomas [2007] NSWCCA 269 Scrimshaw (a pseudonym) v R [2021] NSWCCA 81
Category:	Sentence
Parties:	Rex (Crown) Brian Audley Mullins (Offender)
Representation:	Counsel: F Vella (Crown) D Stewart (Offender) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Ross Hill & Associate Solicitors (Offender)
File Number(s):	2022/00140921
Publication restriction:	There is to be no publication of a name that identifies or is likely to lead to the identification of the complainants in accordance with section 578A of the Crimes Act 1900 and section 15A(1) of the Children (Criminal Proceedings) Act 1987.