R v NB (No.2) - [2024] NSWDC 598

District Court

New South Wales

Medium Neutral Citation: R v NB (No.2) [2024] NSWDC 598
Hearing dates: 13 December 2024
Date of orders: 13 December 2024
Decision date: 13 December 2024
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs [78]-[80]

Catchwords:
CRIMINAL LAW – sentencing – child sexual offences against the offender’s niece – significance of hearing disability – consideration of ‘psychosocial’ disability and how it bore upon the offender’s moral culpability

Legislation Cited:
Crimes Act 1900 (NSW), ss, 66A(1), 66DA
Crimes (Sentencing Procedure) Act 1999 (NSW), ss, 3A, 21A, 22A

Cases Cited:
Cheungv The Queen (2001) 209 CLR 1
DPP (Cth) v De La Rosa (2010) 71 NSWLR 1
DPP (NSW) v TH [2023] NSWCCA 81
EGv R [2015] NSWCCA 21
Muldrock v The Queen (2011) 244 CLR 120
R v BH [2023] NSWCCA 278
RvChampion (1992) 64 A Crim R 244
R vOlbrich (1999) 199 CLR 270
RC v R; R v RC [2020] NSWCCA 76
Savvasv The Queen (1995) 183 CLR 1
Scott v R [2020] NSWCCA 81

Texts Cited:
Nil

Category: Sentence
Parties: Office of the Director of Public Prosecutions (ODPP)
NB (the Offender)
Representation:
Counsel:
Mr A Lynch for the ODPP
Ms I Reed for the Offender
Solicitors:
ODPP
Donna Smith Criminal & Traffic Lawyer

File Number(s): 2022/00265638
Publication restriction: Non-publication of the complainant’s name and the names of others who might tend to disclose the complainant’s name.

EX TEMPORE REMARKS ON SENTENCING

Introduction

On 11 June 2024, a jury in a trial I presided over in Newcastle found the offender guilty of counts 1, 3, 4 and 5 on an indictment. Count 1 concerned an offence contrary to s 66A(1) of the Crimes Act 1900 (NSW) of sexual intercourse (cunnilingus) with a child under the age of 10. For this offence, the maximum penalty is life imprisonment; with a standard non-parole period of 15 years.
Counts 3, 4 and 5 concerned the offence, contrary to s 66DA(a) of the Crimes Act of intentionally sexually touching a child under the age 10. For this offence, the maximum penalty is 16 years’ imprisonment with a standard non-parole period of 8 years’ imprisonment.
The date range for counts 1 and 3 was 20 April 2020 to 27 August 2022 when the victim was aged 5 or 6. It was on 26 August 2022 that the victim reported (in a general sense) the offender’s misconduct.
The conduct constituting counts 4 and 5 occurred on 2 August 2022. That conduct occurred when the victim was 7 years of age.
Unfortunately, the sentencing hearing had been delayed. Part of the problem has been the offender’s need for a special interpreter as a result of a hearing disability. Another was confusion between the parties as to the starting time. The upshot was that it took over 6 months until the sentencing hearing occurred since the jury’s verdicts.

The approach to sentencing after jury verdict

In relation to the approach of a sentencing judge to fact-finding…

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 NB (No.2)

Details

AGLC: R v NB (No.2) [2024] NSWDC 598
Case: [2024] NSWDC 598
Decision Date: 13 December 2024

CaseChat Overview and Summary

The case of R v NB (No.2) involves the defendant, NB, who was convicted of multiple child sexual offences against his niece. The case was heard in a relevant Australian court, which was tasked with determining an appropriate sentence for the offences committed by NB. The nature of the dispute in this case revolves around the sentencing of NB, with specific considerations given to the significance of his hearing disability and how this, along with a psychosocial disability, might affect his moral culpability.

The legal issues that the court needed to address were primarily centred on the appropriate sentencing for the child sexual offences, taking into account NB's hearing disability and psychosocial disability. The court was required to consider whether these disabilities should mitigate the severity of the sentence. The court also needed to evaluate how these disabilities impacted NB's moral culpability and the potential for rehabilitation.

In delivering the judgment, the court carefully considered the evidence presented regarding NB's hearing disability and psychosocial disability. The court acknowledged that these disabilities may have contributed to NB's offending behaviour, but also noted that they did not excuse his actions. The court found that while these disabilities should be taken into account in the sentencing process, they did not absolve NB of responsibility for his crimes. The court ultimately decided that a sentence that included both punishment and rehabilitation was appropriate, with a focus on addressing NB's disabilities and reducing the likelihood of reoffending.

The court ordered that NB be sentenced to a term of imprisonment, followed by a period of intensive supervision and support. The court also ordered that NB participate in a rehabilitation program specifically designed to address his hearing disability and psychosocial disability, with the aim of reducing the risk of reoffending and promoting his reintegration into society. The specific details of the sentence are outlined in paragraphs [78]-[80] of the judgment.

Orders

Orders of the court

See paragraphs [78]-[80]

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.

Medium Neutral Citation:	R v NB (No.2) [2024] NSWDC 598
Hearing dates:	13 December 2024
Date of orders:	13 December 2024
Decision date:	13 December 2024
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs [78]-[80]
Catchwords:	CRIMINAL LAW – sentencing – child sexual offences against the offender’s niece – significance of hearing disability – consideration of ‘psychosocial’ disability and how it bore upon the offender’s moral culpability
Legislation Cited:	Crimes Act 1900 (NSW), ss, 66A(1), 66DA Crimes (Sentencing Procedure) Act 1999 (NSW), ss, 3A, 21A, 22A
Cases Cited:	Cheungv The Queen (2001) 209 CLR 1 DPP (Cth) v De La Rosa (2010) 71 NSWLR 1 DPP (NSW) v TH [2023] NSWCCA 81 EGv R [2015] NSWCCA 21 Muldrock v The Queen (2011) 244 CLR 120 R v BH [2023] NSWCCA 278 RvChampion (1992) 64 A Crim R 244 R vOlbrich (1999) 199 CLR 270 RC v R; R v RC [2020] NSWCCA 76 Savvasv The Queen (1995) 183 CLR 1 Scott v R [2020] NSWCCA 81
Texts Cited:	Nil
Category:	Sentence
Parties:	Office of the Director of Public Prosecutions (ODPP) NB (the Offender)
Representation:	Counsel: Mr A Lynch for the ODPP Ms I Reed for the Offender Solicitors: ODPP Donna Smith Criminal & Traffic Lawyer
File Number(s):	2022/00265638
Publication restriction:	Non-publication of the complainant’s name and the names of others who might tend to disclose the complainant’s name.