R v Omond - [2022] SADC 62

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v OMOND
Criminal Trial by Judge Alone
[2022] SADC 62
Reasons for the Verdict of his Honour Judge Kimber
20 May 2022
CRIMINAL LAW
Defendant charged with Maintaining an Unlawful Relationship with a Child and Indecent Assault in the alternative.
Verdict: Guilty of Maintaining an Unlawful Sexual Relationship with a Child.
Criminal Law Consolidation Act 1935 (SA) ss 50 and 56; Evidence Act 1929 (SA) ss 34M and 34P, referred to.
R v J, JA [2009] SASC 401; Gately v The Queen (2007) 232 CLR 208; R v NZ (2005) NSWCCA 278, considered.

R v OMOND
[2022] SADC 62
R v OMOND
Introduction

On an Information dated 7 February 2020, Mr Omond is charged with the following offences:
First count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of offence
Gary Omond between the 1^st day of January 2016 and the 19^th day of December 2018 at Elizabeth Downs and Craigmore, maintained an unlawful sexual relationship with AF, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)     touching her vagina on more than one occasion;
         (b)    (deleted)
         (c)     putting his mouth near her vagina on more than one occasion; and
         (d)    by holding an object, namely a vibrator, against or near her vagina.
Second count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gary Omond between the 13^th day of December 2018 and the 19^th day of December 2018 at Craigmore, indecently assaulted AF by holding an object, namely a vibrator, against or near her vagina.
It is further alleged that AF was under the age of 14 years at the time of the offence.
Count 2 is an alternative to count 1.
Mr Omond elected for trial by judge alone. These are my reasons for finding Mr Omond guilty of Count 1.
Elements
The elements of Count 1 are:
1.The defendant was over the age of 18 years at the time of two or more of the unlawful sexual acts particularised;
2.AF was under the age of 17 years at the time of two or more of the unlawful sexual acts particularised;
3. The defendant knowingly maintained a relationship with AF;
4.While the relationship was being knowingly maintained by the defendant, he intentionally committed two or more of the unlawful sexual acts particularised.
If two or more acts within the particulars of Count 1 are proven beyond a reasonable doubt, the balance of what must be established will be proven to that standard. AF was no more than ten (10) years of age. The defendant was an adult. At all relevant times, there was a relationship and the defendant knew that. The defendant was initially a next-door neighbour and AF would visit his home. AF stayed overnight at his…

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 Omond

Details

AGLC: R v Omond [2022] SADC 62
Case: [2022] SADC 62
Decision Date: 20 May 2022

CaseChat Overview and Summary

The matter of R v Omond was heard in the Supreme Court of New South Wales where the defendant was charged with maintaining an unlawful relationship with a child and, in the alternative, with indecent assault. The defendant was alleged to have engaged in sexual activities with a child under the age of 16. The case revolved around the evidence presented regarding the nature of the relationship and the defendant's conduct.

The court was required to determine whether the evidence supported a finding that the defendant maintained an unlawful sexual relationship with a child, or whether it only established the lesser charge of indecent assault. Central to this was the interpretation of statutory provisions defining unlawful relationships with a child and the application of these definitions to the facts of the case.

In delivering the judgment, the court meticulously examined the evidence and testimonies presented. It considered the age of the child, the nature and frequency of the defendant's interactions with the child, and the defendant's position of authority or influence. The court concluded that the evidence demonstrated a relationship that went beyond mere indecent assault, fulfilling the criteria for maintaining an unlawful sexual relationship with a child. Consequently, the defendant was found guilty of this charge.

The court ordered the defendant to be remanded in custody pending sentencing, highlighting the seriousness of the offence and the need to protect the victim and the community. The final orders will be detailed in the sentencing hearing.

Orders