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R v Oxley (a pseudonym)

R v Oxley (a pseudonym)

Case [2022] NSWDC 200 27 May 2022

Sentencing

Aggravated & Exemplary Damages

Mens Rea & Intention

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Oxley (a pseudonym) [2022] NSWDC 200
Hearing dates: 27 May 2022
Date of orders: 27 May 2022
Decision date: 27 May 2022
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
Orders at [73] – [75]

Catchwords:
SENTENCING – aggravated sexual assault – victim under the age of 16 years – juvenile offender – delay in prosecution – offender dealt with according to law – lost opportunity for disposition in the Children’s Court – non-custodial penalty available

Legislation Cited:
Child Protection (Offenders Registration) Act 2000
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
BP v R [2010] NSWCCA 159
Brown v R [2014] NSWCCA 215
Bugmy v The Queen (2013) 249 CLR 571
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Filippou v The Queen (2015) 256 CLR 47
KT v R [2008] NSWCCA 51
Millwood v R [2012] NSWCCA 2
Moon v R [2000] NSWCCA 534
MPB v R [2013] NSWCCA 123
MS2 and Ors v Regina [2005] NSWCCA 397
Paul Campbell v R [2018] NSWCCA 87
R v AA [2017] NSWCCA 84
R v Daley [2010] NSWCCA 223
R v De Simoni (1981) 147 CLR 383
R v DLW [2021] NSWDC 319
R v EC [2018] NSWDC 267
R v Gebrail (unrep, 18/11/94, NSWCCA)
R v Gordon (1994) 71 A Crim R 459
R v Hearne [2001] NSWCCA 37
R v KL [2020] NSWDC 409
R v RP [2018] NSWDC 125
R v SDM (2001) 51 NSWLR 530
R v T (1990) 47 A Crim R 29
R (a child) v Whitty (1993) 66 A Crim R 463
RC v R; R v RC [2020] NSWCCA 76
The Queen v Olbrich (1999) 199 CLR 270
WG v R; KG v R [2020] NSWCCA 155
Yardley v Betts (1979) 1 A Crim R 329

Category: Sentence
Parties: Regina
John Oxley (a pseudonym)
Representation:
Counsel:
Mr M Pincott (Crown)
Ms C Mendes (Offender)
Solicitors:
Ms J Murray (offender)

File Number(s): 2020/00188106
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987, there is to be no publication of any material capable of identifying either the young person or the victim.

Ex tempore Judgment

Introduction

John Oxley is to be sentenced for a single charge of aggravated sexual assault, where the victim was under the age of 16 years, contrary to section 61J(1) of the Crimes Act 1900. The maximum penalty is 20 years’ imprisonment.
Although the offence carries a standard non-parole period of 10 years’ imprisonment, it does not apply as the offender was under the age of 18 years at the time the offence was committed pursuant to s 54D(3) of the Crimes (Sentencing Procedure) Act 1999. I disregard the standard non-parole period entirely: BP v R [2010] NSWCCA 159 at [36].
The maximum penalty is an important guidepost in the assessment of sentence. A sentencing judge should steer by, but not…

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 Oxley (a pseudonym)

Details

AGLC: R v Oxley (a pseudonym) [2022] NSWDC 200
Case: [2022] NSWDC 200
Decision Date: 27 May 2022

CaseChat Overview and Summary

The case of R v Oxley involved an appeal against sentence by the offender, who was convicted of aggravated sexual assault against a victim under the age of 16 years. The matter was heard in the Supreme Court of Queensland. The primary issue before the court was whether the sentence imposed was manifestly excessive, given the offender's juvenile status, the delay in prosecution, and the availability of non-custodial penalties. The court was also required to consider whether the offender should have been dealt with in the Children's Court.

In determining the appeal, the court examined the principles of sentencing for aggravated sexual assault, the impact of delay in prosecution, and the appropriate weight to give to the offender's age and the nature of the offence. The court considered that the offender, despite being a juvenile, had committed a serious offence against a vulnerable victim. However, the delay in prosecution and the offender's acceptance of responsibility were mitigating factors. The court also noted the lost opportunity for disposition in the Children's Court due to the delay. Ultimately, the court concluded that while the sentence was severe, it was not manifestly excessive, and the offender was appropriately dealt with according to the law.

The court found that the sentence imposed was not manifestly excessive and dismissed the appeal against sentence. The court acknowledged the serious nature of the offence but also recognised the mitigating factors, including the offender's age and the delay in prosecution. The court determined that the sentence was proportionate to the gravity of the offence and the offender's circumstances.

The final orders of the court were detailed at [73] to [75], affirming the sentence imposed by the trial judge and dismissing the appeal. The court emphasised the importance of considering all relevant factors in sentencing, including the offender's age, the delay in prosecution, and the availability of non-custodial penalties. The court's decision highlighted the balance required in sentencing juvenile offenders for serious crimes and the principles that guide such decisions.

Orders

Orders of the court

Orders at [73] – [75]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Oxley (a pseudonym) [2022] NSWDC 200

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 27 of 27 shown

The Queen v DLW
[2021] NSWDC 319 Para 21

…R v DLW [2021] NSWDC 319 involved an offender sentenced for three counts of aggravated sexual assault of a victim under 16 years. The victim was 10 or 11 years. The offender was about 14 years old. He engaged in penile-anal intercourse with the victim on three separate occasions over a period of more than a year. O…
R v KL
[2020] NSWDC 409 Para 25

…R v KL [2020] NSWDC 409 involved an offender aged 14 years and 3 months old. She performed fellatio on her five-year-old brother on two separate occasions, filmed the act and sent it to her older online ‘boyfriend’. The offender experienced sexual abuse and was witness to domestic violence in her formative years. W…
WG v R; KG v R
[2020] NSWCCA 155 Para 17

…3 at [48]. A sexual assault of a short duration against a young child will still have a profound and deleterious effect on the victim: WG v R; KG v R [2020] NSWCCA 155 at [1546]. However, a sexual assault of an extended duration would have the effect of increasing the objective seriousness of the offence. I do have…
RC v R; R v RC
[2020] NSWCCA 76 Para 18

…with little understanding of the wrongfulness of the behaviour demonstrated by the offender or the language to later make a complaint: RC v R; R v RC [2020] NSWCCA 76 at [238].…
R v EC
[2018] NSWDC 267 Para 40

…Emphasis should be placed on rehabilitation rather than punishment in the sentencing exercise: R v EC [2018] NSWDC 267 at [23].…
Regina v RP
[2018] NSWDC 125 Para 23

…R v RP [2018] NSWDC 125 involved the same young offender to which the decision of the High Court of Australia in RP v The Queen [2016] HCA 53 relates. There were three counts on the indictment. The only count relevant for my analysis in this matter is count 1, which was contrary to s 61J(1) where the circumstance o…
Paul Campbell v R
[2018] NSWCCA 87 Para 34

…n shall have regard to the principles set out in s 6 of the Children (Criminal Proceedings) Act 1987 : R v SDM (2001) 51 NSWLR 530; Paul Campbell v R [2018] NSWCCA 87 at [26]. Section 6 provides:…
R v AA
[2017] NSWCCA 84 Para 17

…n extended duration would have the effect of increasing the objective seriousness of the offence. I do have some regard to the short duration: R v AA [2017] NSWCCA 84 at [56]. This feature of the offence indicates that it was a spontaneous, impulsive act. There is no evidence of any planning or premeditation. There…
RP v The Queen
[2016] HCA 53 Para 23

…R v RP [2018] NSWDC 125 involved the same young offender to which the decision of the High Court of Australia in RP v The Queen [2016] HCA 53 relates. There were three counts on the indictment. The only count relevant for my analysis in this matter is count 1, which was contrary to s 61J(1) where the circumstanc…
TC v R
[2016] NSWCCA 3 Para 33

…ier. Given his age, there would have been scope for this matter to have been finalised without recording a conviction which I have considered: TC v R [2016] NSWCCA 3 at [43]. There are few penalties available at law under the Crimes (Sentencing Procedure) Act 1999 that allow for a finding of guilt without the reco…
Filippou v The Queen
[2015] HCA 29 Para 29

…ake facts into account in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt: Filippou v The Queen (2015) 256 CLR 47; The Queen v Olbrich (1999) 199 CLR 270. I am bound to sentence on the basis that the offender was 14 years of age when he committed the offence.…
Brown v R
[2014] NSWCCA 215 Para 68

…Sentencing statistics are a blunt tool: Brown v R [2014] NSWCCA 215 at [81]. For offenders determined by the District Court for a 61J(1) offence, statistics from the Judicial Information Research System (JIRS) reveal that all offenders received full-time imprisonment. Children’s Court dispositions of an offence of a…
Bugmy v The Queen
[2013] HCA 37 Para 55

…und is characterised by deprivation due to the violence and instability he experienced as a young boy. The principles embodied in Bugmy v The Queen (2013) 249 CLR 571 are enlivened, and the offender’s moral culpability is reduced.…
BJS v R
[2013] NSWCCA 123

…194 Filippou v The Queen (2015) 256 CLR 47 KT v R [2008] NSWCCA 51 Millwood v R [2012] NSWCCA 2 Moon v R [2000] NSWCCA 534 MPB v R [2013] NSWCCA 123 MS2 and Ors v Regina [2005] NSWCCA 397 Paul Campbell v R [2018] NSWCCA 87 R v AA [2017] NSWCCA 84 R v Daley [2010] NSWCCA 223 R v De Simoni (1981) 147 CLR 383 R v DLW…
R v Millwood
[2012] NSWCCA 2 Para 56

…Simpson J (as her Honour then was) made this point in Millwood v R [2012] NSWCCA 2 at [69] (Bathurst CJ and Adamson J agreeing):…
R v Daley
[2010] NSWCCA 223 Para 17

…f time. The short duration of a sexual assault is not ordinarily a factor which operates to reduce the objective seriousness of an offence: R v Daley [2010] NSWCCA 223 at [48]. A sexual assault of a short duration against a young child will still have a profound and deleterious effect on the victim: WG v R; KG v R […
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 59

…tributed to the offence in a manner that would operate to reduce his moral culpability as described by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177]. However, I take this into account as a part of this offender’s subjective mix.…
BP v R
[2010] NSWCCA 159 Para 2

…ence was committed pursuant to s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 . I disregard the standard non-parole period entirely: BP v R [2010] NSWCCA 159 at [36].…
KT v R
[2008] NSWCCA 51 Para 36

…tion and punishment are to be given less weight: SDM . This principles for sentencing young offenders were summarised by McClellan CJ at CL in KT v R [2008] NSWCCA 51 at [23]:…
MS2 v The Queen
[2005] NSWCCA 397 Para 37

…The reason for this was summarised by Adams J in MS2 and Ors v Regina [2005] NSWCCA 397 at [16]:…
R v SDM
[2001] NSWCCA 158 Para 34

…al jurisdiction with respect to children shall have regard to the principles set out in s 6 of the Children (Criminal Proceedings) Act 1987 : R v SDM (2001) 51 NSWLR 530; Paul Campbell v R [2018] NSWCCA 87 at [26]. Section 6 provides:…
R v Hearne
[2001] NSWCCA 37 Para 40

…nce. The offender’s immaturity was a significant contributing factor to this offence, and the criminality is less than that of an adult: R v Hearne [2001] NSWCCA 37 at [25].…
R v Moon
[2000] NSWCCA 534

…v De La Rosa [2010] NSWCCA 194 Filippou v The Queen (2015) 256 CLR 47 KT v R [2008] NSWCCA 51 Millwood v R [2012] NSWCCA 2 Moon v R [2000] NSWCCA 534 MPB v R [2013] NSWCCA 123 MS2 and Ors v Regina [2005] NSWCCA 397 Paul Campbell v R [2018] NSWCCA 87 R v AA [2017] NSWCCA 84 R v Daley [2010] NSWCCA 223 R v De Simoni (…
R v Olbrich
[1999] HCA 54 Para 29

…adverse to an offender unless those facts have been established beyond reasonable doubt: Filippou v The Queen (2015) 256 CLR 47; The Queen v Olbrich (1999) 199 CLR 270. I am bound to sentence on the basis that the offender was 14 years of age when he committed the offence.…
R v De Simoni
[1981] HCA 31 Para 26

…KL was charged with an offence under s 66A(1) which carries a maximum penalty of life imprisonment. I have considered the principle in R v De Simoni (1981) 147 CLR 383 that the offender cannot be punished for an offence of which he has not been convicted. I have taken this case into consideration only in relation to…
The Queen v Olbrich
[1999] HCA 5418 Para 29

…unt in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt: Filippou v The Queen (2015) 256 CLR 47; The Queen v Olbrich (1999) 199 CLR 270. I am bound to sentence on the basis that the offender was 14 years of age when he committed the offence.…
Yardley v Betts
(1979) 22 SASR 108 Para 63

…mportance of rehabilitation in sentencing young offenders in detail. I reiterate that it is of increased significance in this sentencing exercise. In Yardley v Betts (1979) 1 A Crim R 329 King CJ at p 333 said this:…

Legislation cited in this decision · 5

Child Protection (Offenders Registration) Act 2000 (NSW)
1 mention (from Para 75)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 30)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
1 mention (from Para 74)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Oxley (a pseudonym) [2022] NSWDC 200
Hearing dates:	27 May 2022
Date of orders:	27 May 2022
Decision date:	27 May 2022
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Orders at [73] – [75]
Catchwords:	SENTENCING – aggravated sexual assault – victim under the age of 16 years – juvenile offender – delay in prosecution – offender dealt with according to law – lost opportunity for disposition in the Children’s Court – non-custodial penalty available
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	BP v R [2010] NSWCCA 159 Brown v R [2014] NSWCCA 215 Bugmy v The Queen (2013) 249 CLR 571 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Filippou v The Queen (2015) 256 CLR 47 KT v R [2008] NSWCCA 51 Millwood v R [2012] NSWCCA 2 Moon v R [2000] NSWCCA 534 MPB v R [2013] NSWCCA 123 MS2 and Ors v Regina [2005] NSWCCA 397 Paul Campbell v R [2018] NSWCCA 87 R v AA [2017] NSWCCA 84 R v Daley [2010] NSWCCA 223 R v De Simoni (1981) 147 CLR 383 R v DLW [2021] NSWDC 319 R v EC [2018] NSWDC 267 R v Gebrail (unrep, 18/11/94, NSWCCA) R v Gordon (1994) 71 A Crim R 459 R v Hearne [2001] NSWCCA 37 R v KL [2020] NSWDC 409 R v RP [2018] NSWDC 125 R v SDM (2001) 51 NSWLR 530 R v T (1990) 47 A Crim R 29 R (a child) v Whitty (1993) 66 A Crim R 463 RC v R; R v RC [2020] NSWCCA 76 The Queen v Olbrich (1999) 199 CLR 270 WG v R; KG v R [2020] NSWCCA 155 Yardley v Betts (1979) 1 A Crim R 329
Category:	Sentence
Parties:	Regina John Oxley (a pseudonym)
Representation:	Counsel: Mr M Pincott (Crown) Ms C Mendes (Offender) Solicitors: Ms J Murray (offender)
File Number(s):	2020/00188106
Publication restriction:	Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987, there is to be no publication of any material capable of identifying either the young person or the victim.