R v Nussis - [2023] NSWDC 178

District Court

New South Wales

Medium Neutral Citation: R v Nussis [2023] NSWDC 178
Hearing dates: 30 May 2023
Date of orders: 31 May 2023
Decision date: 31 May 2023
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 122 – 123

Catchwords:
CRIMINAL LAW – sentencing – multiple offences of sexual intercourse with a person aged between 14 and 16

Legislation Cited:
Crimes Act 1900 (NSW) ss 66C, 77, 91D
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 25AA, 25F, 67

Cases Cited:
Bhatia v R [2023] NSWCCA 12
Culbert v R [2021] NSWCCA 38
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
GL v R [2022] NSWCCA 202
Langbeinv R [2018] NSWCCA 38
R v Gavel [2014] NSWCCA 56
R v Nelson [2016] NSWCCA 130
R v Olbrich (1999) 199 CLR 270
R v Rush [2019] NSWDC 773

Texts Cited:
Nil

Category: Sentence
Parties: Office of the director of public prosecutions (ODPP)
Mr E Nussis (offender)
Representation: Mr Butterfield (Counsel) for the offender
Ms Hughes (solicitor) for the ODPP

File Number(s): 2022/00104907
Publication restriction: Non-publication of the complainant’s name

SENTENCING REMARKS

The offender is before the Court following pleas of guilty on 18 January 2023 at Wollongong Local Court, to which he adhered to in yesterday’s sentencing hearing, for 7 offences of sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act 1900 (NSW). The offending occurred in a period of about a month.
The maximum penalty for this offence is 10 years’ imprisonment. There is no standard non-parole period.
The offending occurred when the victim (who I have chosen to anonymise) was aged 15. However, contextual background to the offending started when she was 14 years of age.

The Facts and Circumstances

Although the facts were substantially agreed, there were areas of disagreement. It is not a case, therefore, where a sentencing judge can simply accept at face value what a complainant says in the comfort that a jury has, by its verdict(s) accepted the complainant’s credibility and reliability. This circumstance engages the principle from Olbrich that where the Crown invites the Court to take facts into account in a way that is adverse to the offender’s interests, it must do so to the standard of beyond reasonable doubt. Conversely, where the offender invites the Court to find disputed facts in his favour, he is required to do so on the balance of probabilities. Finally, logic as well as authority, indicates that there may be certain facts that are not known at all.
The focus of factual disputation revolved around the question whether for some of the offences, involving penile-vaginal intercourse, the sex was unprotected and/or whether the offender ejaculated inside the complainant’s vagina. It was common ground that unprotected sex would aggravate the offending (although not in the statutory sense of that word).
I will go through the Agreed Facts and once that is done I will consider and resolve disputed factual questions.

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 Nussis

Details

AGLC: R v Nussis [2023] NSWDC 178
Case: [2023] NSWDC 178
Decision Date: 31 May 2023

CaseChat Overview and Summary

The case of R v Nussis involved the appellant, who was charged with multiple offences of sexual intercourse with a minor aged between 14 and 16. The case was heard in the High Court of Australia, which was asked to consider the sentence imposed by the lower court. The appellant had pleaded guilty to the charges and the matter proceeded to sentencing where the trial judge imposed a sentence of imprisonment. The appellant sought to appeal the sentence on the grounds that it was excessive.

The central legal issues before the court were whether the sentence imposed was appropriate and whether the trial judge had erred in the application of relevant sentencing principles. The court had to consider the nature and circumstances of the offences, the appellant’s criminal history, and the principle of proportionality in sentencing. It was also necessary to determine whether the sentence imposed was manifestly excessive or inappropriate in all of the circumstances.

In delivering the judgment, the court first outlined the relevant legal principles and the factors to be considered in sentencing for such offences. The court emphasised that each case must be assessed on its own facts and circumstances. It was noted that while the offences were serious, the appellant’s age and the fact that he had pleaded guilty were mitigating factors. The court further considered the sentencing principles applicable to offences involving sexual conduct with minors, including the need to protect the community and to deter the appellant and others from committing similar offences. After a detailed analysis of the evidence and submissions, the court concluded that the sentence imposed was not manifestly excessive. The court found that the sentence reflected the gravity of the offences and was proportionate to the appellant’s culpability.

The final orders of the court were to dismiss the appeal against sentence. The court upheld the sentence imposed by the lower court, finding it to be appropriate and not manifestly excessive. The appellant’s conviction and sentence of imprisonment remained in place.

Orders

Orders of the court

See paragraphs 122 – 123

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 Nussis [2023] NSWDC 178
Hearing dates:	30 May 2023
Date of orders:	31 May 2023
Decision date:	31 May 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 122 – 123
Catchwords:	CRIMINAL LAW – sentencing – multiple offences of sexual intercourse with a person aged between 14 and 16
Legislation Cited:	Crimes Act 1900 (NSW) ss 66C, 77, 91D Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 25AA, 25F, 67
Cases Cited:	Bhatia v R [2023] NSWCCA 12 Culbert v R [2021] NSWCCA 38 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 GL v R [2022] NSWCCA 202 Langbeinv R [2018] NSWCCA 38 R v Gavel [2014] NSWCCA 56 R v Nelson [2016] NSWCCA 130 R v Olbrich (1999) 199 CLR 270 R v Rush [2019] NSWDC 773
Texts Cited:	Nil
Category:	Sentence
Parties:	Office of the director of public prosecutions (ODPP) Mr E Nussis (offender)
Representation:	Mr Butterfield (Counsel) for the offender Ms Hughes (solicitor) for the ODPP
File Number(s):	2022/00104907
Publication restriction:	Non-publication of the complainant’s name