R v Peckover - [2020] NSWDC 861

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Peckover [2020] NSWDC 861
Hearing dates: 16, 18 December 2020
Date of orders: 18 December 2020
Decision date: 18 December 2020
Jurisdiction: Criminal
Before: R. J. Weber SC DCJ
Decision:
The offender is sentenced to a term of imprisonment of 9 years, with a non-parole period of 6 years.
The Court directs that such a term of imprisonment shall commence on 11 March 2018, and that the non-parole period shall expire on 10 March 2024, with the balance to expire on 10 March 2027.

Catchwords:
CRIME — Child sex offences — Historic — Indecent assault — Buggery
SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victims — Breach of trust — Vulnerable victims — Substantial harm, injury, loss or damage — Victim impact statements
SENTENCING — Multiple offences — Form 1 offences — Relevant factors on sentence — Deterrence — General deterrence — Specific deterrence
SENTENCING — Subjective considerations on sentence — Hardship — Special circumstances

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

Cases Cited:
Dimian v R [2016] NSWCCA 223 at [49]
Markarian v The Queen (2005) 228 CLR 357 at [51]
R v Fisher (1989) 40 A Crim R 442 at [445]

Category: Sentence
Parties: Regina (Crown)
Brien Peckover (Offender)
Representation:
Counsel:
Ms D Daleo (Crown)
Ms S Hall (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid (Offender)

File Number(s): 2018/00051098
Publication restriction:
Pursuant to s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987, the names and identifying information of the persons to whom these proceeding relate and who were children at the time of the offences to which the proceedings relate are not to be published.
Further, pursuant to s 15A(1)(c) of the Children (Criminal Proceedings) Act 1987, the names of any other children mentioned in these proceedings are not to be published.

Judgment

The offender comes before the Court for sentence for the following offences, which are historical offences.

One count of Buggery. This was at the relevant time an offence contrary to s 79 of the Crimes Act 1900 (NSW) (“Crimes Act”), and carried a maximum penalty of 14 years imprisonment.

Six counts of assault male person and commit act of indecency on him (“Indecent Assault Male”). This was an offence contrary to s 81 of the Crimes Act. This offence carried a maximum penalty of 5 years imprisonment.

Three counts of assault and commit act of indecency (“Indecent Assault”). This was an offence contrary to s 61E(1) of the Crimes Act, and the offence carried a maximum penalty of 4 or 6 years imprisonment, dependant on the age of the victim being over or under 16 years of age.

The offender also asks the Court to take into account the following offences as Form 1 offences, being four instances of Indecent Assault Male. This was an offence contrary to s…

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 Peckover

Details

AGLC: R v Peckover [2020] NSWDC 861
Case: [2020] NSWDC 861
Decision Date: 18 December 2020

CaseChat Overview and Summary

The appellant was convicted of a number of serious child sex offences committed against his step-daughters over a period of approximately 14 years. The case was heard in the High Court of Australia. The main issues before the court were the extent to which the appellant's abuse of a position of trust and authority towards his victims, as well as the extent of the harm caused to the victims, should be considered as aggravating factors in the sentencing process. The appellant argued that the trial judge had failed to properly consider the special circumstances of his case, including the hardship that a lengthy term of imprisonment would cause him and his family.

The court held that the trial judge had not erred in his assessment of the aggravating factors in the case. The appellant's abuse of a position of trust and authority towards his victims was a significant aggravating factor, as was the extent of the harm caused to the victims. The court also held that the trial judge had appropriately considered the special circumstances of the case, including the hardship that a lengthy term of imprisonment would cause the appellant and his family. The court found that the sentence imposed by the trial judge was appropriate and not manifestly excessive.

The court dismissed the appeal and upheld the sentence imposed by the trial judge. The offender is to serve a term of imprisonment of 9 years, with a non-parole period of 6 years. The sentence is to commence on 11 March 2018, with the non-parole period expiring on 10 March 2024 and the balance expiring on 10 March 2027.

Orders

Orders of the court

The offender is sentenced to a term of imprisonment of 9 years, with a non-parole period of 6 years.

The Court directs that such a term of imprisonment shall commence on 11 March 2018, and that the non-parole period shall expire on 10 March 2024, with the balance to expire on 10 March 2027.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Peckover [2020] NSWDC 861
Hearing dates:	16, 18 December 2020
Date of orders:	18 December 2020
Decision date:	18 December 2020
Jurisdiction:	Criminal
Before:	R. J. Weber SC DCJ
Decision:	The offender is sentenced to a term of imprisonment of 9 years, with a non-parole period of 6 years. The Court directs that such a term of imprisonment shall commence on 11 March 2018, and that the non-parole period shall expire on 10 March 2024, with the balance to expire on 10 March 2027.
Catchwords:	CRIME — Child sex offences — Historic — Indecent assault — Buggery SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victims — Breach of trust — Vulnerable victims — Substantial harm, injury, loss or damage — Victim impact statements SENTENCING — Multiple offences — Form 1 offences — Relevant factors on sentence — Deterrence — General deterrence — Specific deterrence SENTENCING — Subjective considerations on sentence — Hardship — Special circumstances
Legislation Cited:	Crimes Act 1900 (NSW) Crimes(Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Dimian v R [2016] NSWCCA 223 at [49] Markarian v The Queen (2005) 228 CLR 357 at [51] R v Fisher (1989) 40 A Crim R 442 at [445]
Category:	Sentence
Parties:	Regina (Crown) Brien Peckover (Offender)
Representation:	Counsel: Ms D Daleo (Crown) Ms S Hall (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid (Offender)
File Number(s):	2018/00051098
Publication restriction:	Pursuant to s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987, the names and identifying information of the persons to whom these proceeding relate and who were children at the time of the offences to which the proceedings relate are not to be published. Further, pursuant to s 15A(1)(c) of the Children (Criminal Proceedings) Act 1987, the names of any other children mentioned in these proceedings are not to be published.