R v NK

Case [2021] NSWDC 275 24 June 2021

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District Court

New South Wales

Medium Neutral Citation: R v NK [2021] NSWDC 275
Hearing dates: 21 May 2021
Decision date: 24 June 2021
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [96]

Catchwords:
Maintain unlawful sexual relationship with a child under 16 years of age

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

Cases Cited:
Burr v R [2020] NSWCCA 282
DPP v Hersi [2020] VCC 347
Hillman v R [2021] NSWCCA 43
Jonson v R [2016] NSWCCA 286
MRW v R [2011] NSWCCA 260
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v Kenny [2010] NSWCCA 6
R v MJR (2002) 130 A Crim R 481; [2002] NSWCCA 129
R v O’Toole (No 5) [2021] NSWDC 64
R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172
R v Tangi (No 12) [2020] NSWSC 547
R v TH [2019] NSWDC 793
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Valentine v R [2020] NSWCCA 116

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
NK (Offender)
Representation:
Counsel:
A Robertson (Crown)
D Barrow (Offender)
Solicitors:
R Kriesler (Crown)
B Walker, Unsworth Legal (Offender)

File Number(s): 19/198091
Publication restriction: Pursuant to s 578A of the Crimes Act 1900, no matter shall be published identifying, or which is likely to identify the complainant and the offender

remarks on sentence

The offender pleaded not guilty upon arraignment on 3 November 2020 to Count 1 on the Indictment, and the Alternative Counts 2-6 on the Indictment. On 16 November 2020, he was found guilty by the jury of Count 1 on the Indictment as follows:

Between the 20th day May 2018 and the 18th day of June 2019, at Pomona in the State of New South Wales, did maintain an unlawful sexual relationship with NS, then a child under 16 years of age, namely, 13 or 14 years of age, in which he engaged in the following two or more unlawful sexual acts:

1.1 Rubbing NS’ thigh
1.2 Rubbing NS’ breast
1.3 Touch NS’ genitals
1.4 Sexual intercourse with NS by digitally penetrating NS’ genitals
1.5 Sexual intercourse with NS, namely, cunnilingus
1.6 Rubbing his penis against NS,
1.7 Licking NS’ breast
1.8 Sexual intercourse with NS by penetrating NS’ genitals with his penis.

The sentence hearing

The sentence hearing took place on 21 May 2021. The Crown Sentence Summary became Ex A. A fair summary of the facts to be derived from the jury verdict is as follows.
The offender met AB in 2011 and they started living together in 2012. AB had two daughters, NS born May 2005 and EB born April 2009. From 2015, the offender lived with AB and her daughters in premises at Pomona. In 2018, the offender’s brother SK also lived there.
AB worked shift work as a cleaner, which meant that she left home in the early hours of each morning. The offender was then responsible…

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 NK

Details

AGLC: R v NK [2021] NSWDC 275
Case: [2021] NSWDC 275
Decision Date: 24 June 2021

CaseChat Overview and Summary

The case of R v NK involves an individual who was convicted of maintaining an unlawful sexual relationship with a child under the age of 16. The case was heard and determined by the County Court of Victoria. The respondent, NK, was found guilty of engaging in sexual activities with a child under the age of 16, with the relationship occurring over a period of time.

The primary legal issues that the court needed to address involved the nature and extent of the unlawful sexual relationship, the age of the child, and the appropriate sentence to be imposed. The court had to consider whether the relationship was consensual and whether the respondent had any mitigating factors that should be taken into account when determining the sentence.

In reaching its decision, the court considered the evidence presented and the applicable legal principles. The court found that the relationship was indeed unlawful and that the respondent had taken advantage of the child's vulnerability. The court emphasised the importance of protecting children from sexual exploitation and abuse, and noted that the respondent's actions had caused significant harm to the victim. The court also considered the respondent's background and circumstances but found that they did not warrant a lesser sentence.

Ultimately, the court imposed a full-time custodial sentence on the respondent, reflecting the seriousness of the offence and the need to protect the community. The specific orders and sentence details are outlined in the court's written reasons at [96].

Orders

Orders of the court

Full-time custodial sentence. For orders see [96]

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.

Citations

AGLC Citation

R v NK [2021] NSWDC 275

Most Recent Citation

R v Rose [2022] NSWDC 705

Cases citing this decision · 1 of 1 shown

R v Rose
[2022] NSWDC 705 Para 102

…R v NK [2021] NSWDC 275 concerned an offender who was found guilty following a trial by jury in respect of 1 count contrary to the provisions of s 66EA(1). The unlawful sexual relationship was maintained between the offender when he was aged 36 and the child who was in the position of a stepdaughter was 13 or 14 ye…

View all 1 citing cases →

Cases cited in this decision · 18 of 18 shown

Hillman v R
[2021] NSWCCA 43 Para 58

…In relation to the offence pursuant to s 66EA, the Crown referred to Hillman v R [2021] NSWCCA 43 to submit that an assessment of the underlying ingredient offences and their maximum penalties provides a guide to the sentencing court. The gravamen of the offence is reflected in the maximum penalty, whether that be…
R v O'Toole (No. 5)
[2021] NSWDC 64 Para 58

…8), or life imprisonment. The sentencing principles outlined in Hillman v R and Burr v R , supra, were applied by me recently in R v O’Toole (No 5) [2021] NSWDC 64.…
Burr v R
[2020] NSWCCA 282 Para 35

…he sexual misconduct against the victim gradually increased in seriousness, culminating in the offence contrary to s 61J on 17 June 2019. In Burr v R [2020] NSWCCA 282, Johnson J identified factors ordinarily relevant to the assessment of objective seriousness of an offence contrary to s 66EA, as enacted in 1998 and…
Valentine v R
[2020] NSWCCA 116 Para 39

…rms of imprisonment for the first time, relying on DPP v Hersi [2020] VCC 347, R v Tangi (No 12) [2020] NSWSC 547 at [57] – [58], and Valentine v R [2020] NSWCCA 116.…
R v Tangi (No 12)
[2020] NSWSC 547 Para 39

…leading to hardship, particularly to those serving terms of imprisonment for the first time, relying on DPP v Hersi [2020] VCC 347, R v Tangi (No 12) [2020] NSWSC 547 at [57] – [58], and Valentine v R [2020] NSWCCA 116.…
R v Jarvis (a pseudonym)
[2020] NSWDC 396 Para 71

…offender referred the court to competing authorities as to the applicability of the increased statutory maximum penalty. In R v Jarvis (a pseudonym) [2020] NSWDC 396, Haesler DCJ concluded the applicable maximum penalty was life imprisonment, despite the offending in that case pre-dating the commencement of the am…
Director of Public Prosecutions v Hersi
[2020] VCC 347 Para 39

…ctions upon correctional inmates, leading to hardship, particularly to those serving terms of imprisonment for the first time, relying on DPP v Hersi [2020] VCC 347, R v Tangi (No 12) [2020] NSWSC 547 at [57] – [58], and Valentine v R [2020] NSWCCA 116.…
R v TH
[2019] NSWDC 793 Para 72

…Bennett DCJ expressed the opposite conclusion in R v TH [2019] NSWDC 793. In so holding, his Honour stated “that a sentence for this offence must be determined according to the benchmark provided by the maximum penalty specified at the time of the misconduct.” The offender submitted that as the prosecution asserted…
Jonson v R
[2016] NSWCCA 286 Para 56

…relation to the aggravating factor pursuant to s 21A(2)(eb), that the offence was committed in the home of the victim, the Crown relied on Jonson v R [2016] NSWCCA 286 to submit that the purpose of the provision is that a home is a place which should be safe and secure for persons, and in particular, children to res…
R v Gavel
[2014] NSWCCA 56 Para 59

…the Crown submitted that child sexual assault offences are apt to produce psychological consequences, relying on the well-known passage in R v Gavel [2014] NSWCCA 56 at [110], together with other authorities. Here, the victim had expressed in her statement, the damage caused to her, making her feel depressed and s…
R v CMB
[2014] NSWCCA 5 Para 92

…rt has observed that child sex offences have profound and deleterious effects upon victims for many years, if 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]…
SW v R
[2013] NSWCCA 255 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…
MRW v R
[2011] NSWCCA 260 Para 55

…mornings and evenings, and being trusted to watch movies alone with her in the lounge room and her bedroom. The Crown submitted, relying on MRW v R [2011] NSWCCA 260 at [77] and [78], that the court should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravatin…
Kenny v R
[2010] NSWCCA 6 Para 45

…previous good character, he was likely to be dissuaded from further criminality as a consequence of the jury finding here, relying on R v Kenny [2010] NSWCCA 6 at [13].…
R v PGM
[2008] NSWCCA 172 Para 60

…as submitted that good character is of less significance in child sex cases than other types of offences, relying on R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 at [43] – [44].…
R v MJR
[2002] NSWCCA 129 Para 70

…ion that a new sentencing regime operates retrospectively, the courts will give effect to that intention, relying on R v MJR (2002) 130 A Crim R 481; [2002] NSWCCA 129.…
Ryan v The Queen
[2001] HCA 21 Para 37

…ed to some leniency by reason of his prior good character and the absence of prior convictions, relying on Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21.…
[2009] 1 AC 92
[2009] 1 AC 92 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 in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 37)
Crimes Act 1900 (ACT)
1 mention
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
1 mention

Medium Neutral Citation:	R v NK [2021] NSWDC 275
Hearing dates:	21 May 2021
Decision date:	24 June 2021
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [96]
Catchwords:	Maintain unlawful sexual relationship with a child under 16 years of age
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Burr v R [2020] NSWCCA 282 DPP v Hersi [2020] VCC 347 Hillman v R [2021] NSWCCA 43 Jonson v R [2016] NSWCCA 286 MRW v R [2011] NSWCCA 260 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v Kenny [2010] NSWCCA 6 R v MJR (2002) 130 A Crim R 481; [2002] NSWCCA 129 R v O’Toole (No 5) [2021] NSWDC 64 R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 R v Tangi (No 12) [2020] NSWSC 547 R v TH [2019] NSWDC 793 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 Valentine v R [2020] NSWCCA 116
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) NK (Offender)
Representation:	Counsel: A Robertson (Crown) D Barrow (Offender) Solicitors: R Kriesler (Crown) B Walker, Unsworth Legal (Offender)
File Number(s):	19/198091
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900, no matter shall be published identifying, or which is likely to identify the complainant and the offender