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
Cases Cited: Burr v R [2020] NSWCCA 282
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:
Solicitors:
A Robertson (Crown)
D Barrow (Offender)
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
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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
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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.
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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.
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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…
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- AGLC
- R v NK [2021] NSWDC 275
- Case
- [2021] NSWDC 275
- Decision Date
CaseChat Overview and Summary
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
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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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