R v Nahn, William - [2017] NSWDC 432

District Court

New South Wales

Medium Neutral Citation: R v NAHN, William [2017] NSWDC 432
Hearing dates: 8 December 2017
Date of orders: 15 December 2017
Decision date: 15 December 2017
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Full time custodial sentence. Full details at [97].

Catchwords: Criminal – sentence – after trial – sexual intercourse without consent – indecent assault – whether standard non-parole period applies to ‘attempt’ offences – offence occurred within female toilets of a licenced venue – victim affected by alcohol – victim impact statement – psychological report of the offender conflicted with his evidence of denial – prior relevant criminal history – subsequent offence only considered in determining likelihood of reoffending – treatment of mental condition on sentence – special circumstances found
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999
Cases Cited: DAC v R
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Engert [1995] 84 A Crim R 67
Hanney [2014] NSWDC 13
Kearsley [2017] NSWCCA 28
Pearce v The Queen (1998) 194 CLR 610
Category: Sentence
Parties: Regina
William Nahn
Representation: Counsel:
Ms. Barnes – Director of Public Prosecutions
Ms. Orman-Hales – Offender

File Number(s): 2016/00235881
Publication restriction: No publication of identity of victim

SENTENCE

HIS HONOUR: William Nhan today appears for sentence in relation to two offences in respect of which he was found guilty by a jury on 30 October 2017. He was arraigned on 20 October 2017 in respect of an offence of sexual intercourse without consent, committed upon the complainant on 10 June 2016. Alternatively, attempted sexual intercourse without consent, which was count 2; and a third count of indecent assault. The jury found the accused guilty of the alternative count, which was count 2 and count 3.
The prisoner has been in custody since the verdict on 30 October when he was refused bail. But I am advised by the Crown there were two days of pre‑sentence custody, or what should be calculated as two days, and thus the sentences that I impose will effectively commence from 28 October 2017 to give full credit to pre-sentence custody. The maximum penalty for an offence of attempting sexual intercourse without consent is 14 years’ imprisonment, the maximum penalty for the offence of indecent assault is five years’ imprisonment. Attempt sexual assault without consent is an offence created by the combination of the operation of s 61I and s 61P which deals with attempts to commit offences pursuant s 61I, 61J, 61J(a). The offence of indecent assault the Crown informs me is brought pursuant to s 61L Crimes Act 1900.
The Crown’s cover sheet indicated there was no standard non-parole period in relation to each offence. Learned counsel for the prisoner’s written submissions referred to the fact that there was a standard non-parole period for the attempted sexual intercourse without consent knowing the complainant was not consenting of seven years’ imprisonment. I have discussed that matter with the learned Crown Prosecutor. The solicitor representing the prisoner…

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 Nahn, William

Details

AGLC: R v Nahn, William [2017] NSWDC 432
Case: [2017] NSWDC 432
Decision Date: 15 December 2017

CaseChat Overview and Summary

The respondent, William Nahn, was convicted following a trial in the Supreme Court of South Australia of sexual intercourse without consent, as well as an indecent assault. The court was required to determine the sentence to be imposed on the respondent. The court considered whether the standard non-parole period applied to offences of attempt, and if so, whether it should be reduced due to the particular circumstances of the case. The court also considered the impact on the victim, the respondent’s criminal history, and his mental health condition.

The court found that the standard non-parole period applied to the offence of attempted sexual intercourse without consent. However, it found that special circumstances existed which warranted a reduction in the non-parole period. The court considered the victim impact statement, which detailed the significant impact the offences had on the victim, as well as the psychological report of the offender, which conflicted with his evidence of denial. The court also considered the respondent’s prior criminal history, as well as the subsequent offence, which was only considered in determining the likelihood of reoffending. The court found that the respondent’s mental health condition would be treated on sentence.

The court found that the offences were of high moral blameworthiness, and that a substantial sentence of imprisonment was necessary to adequately reflect the community’s condemnation of the respondent’s conduct. The court found that special circumstances existed which warranted a reduction in the non-parole period, including the respondent’s early guilty plea, his remorse, and the fact that he had no prior convictions for sexual offences. The court also found that the respondent’s mental health condition would be treated on sentence, and that this was a mitigating factor. The court ultimately determined that a full-time custodial sentence was appropriate, with a non-parole period of nine years.

Orders

Orders of the court

Full time custodial sentence. Full details at [97].

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 NAHN, William [2017] NSWDC 432
Hearing dates:	8 December 2017
Date of orders:	15 December 2017
Decision date:	15 December 2017
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full time custodial sentence. Full details at [97].
Catchwords:	Criminal – sentence – after trial – sexual intercourse without consent – indecent assault – whether standard non-parole period applies to ‘attempt’ offences – offence occurred within female toilets of a licenced venue – victim affected by alcohol – victim impact statement – psychological report of the offender conflicted with his evidence of denial – prior relevant criminal history – subsequent offence only considered in determining likelihood of reoffending – treatment of mental condition on sentence – special circumstances found
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999
Cases Cited:	DAC v R DPP (Cth) v De La Rosa [2010] NSWCCA 194 Engert [1995] 84 A Crim R 67 Hanney [2014] NSWDC 13 Kearsley [2017] NSWCCA 28 Pearce v The Queen (1998) 194 CLR 610
Category:	Sentence
Parties:	Regina William Nahn
Representation:	Counsel: Ms. Barnes – Director of Public Prosecutions Ms. Orman-Hales – Offender
File Number(s):	2016/00235881
Publication restriction:	No publication of identity of victim