R v Pemble - [2015] NSWDC 168

District Court

New South Wales

Medium Neutral Citation: R v Pemble [2015] NSWDC 168
Hearing dates: 23 July 2015
Date of orders: 23 July 2015
Decision date: 23 July 2015
Jurisdiction: Criminal
Before: Berman SC DCJ
Decision:
The offender is sentenced to imprisonment for a period of 18 months with a non-parole period of 9 months.

Catchwords: CRIMINAL LAW- Sentence – Form 1 - Historical sexual assault - Sentencing as per existing tariff - Indecent assault - Significant consequences for victim
Legislation Cited: Crimes Act
Category: Sentence
Parties: The Crown
Peter William Pendle
Representation: Solicitors: Director of Public Prosecutions
Greg Walsh and Co - Offender

File Number(s): 2014/238932
Publication restriction: There is to be no publication of the name of the complainant or any material which may tend to identify the complainant

SENTENCE

HIS HONOUR: Very belatedly, sentencing judges have realised the true harm that sexual assault causes to the victims of such offences. Such harm is often significant and long-lasting. It is only in more recent times that the courts have begun to impose sentences which reflect that harm.
In 1972 when the offender committed his offences the courts had an approach to sentencing offenders such as the present which we now know to be wrong. Sentences imposed at that time did not adequately reflect the consequences which flowed from conduct such as I will shortly describe. In 1972 sentences for this type of offence were far more lenient than sentences for similar conduct now.
The law requires that I choose a sentence in this case which reflects the earlier, now discredited, approach. I must try to assess what the offender would have got had he been sentenced soon after he committed his offences, and impose that sentence. I have spoken elsewhere about my disagreement with that approach. To sentence the offender according to standards which existed in the early 1970’s is to perpetuate the errors that were made by sentencing courts at that time. Surely it would be better for the courts when sentencing for offences committed in the 1970’s, to be right some of the time than wrong all of the time. Offenders such as Mr Pemble benefit from earlier mistakes made by sentencing courts, even where we now know that those earlier decisions were wrong.
As will be obvious, I do not agree with the present state of sentencing law so I should make it abundantly clear that I recognise that my views must be put aside. I am entitled to suggest that the law is wrong and that it should be changed. I am not entitled to ignore it. Accordingly, I will sentence the offender as though he was dealt with at the time of or soon after his offending conduct.
He has pleaded guilty to one count of indecent assault on a male pursuant to s 81 of the Crimes Act. That offence, now repealed, carries a maximum penalty of five years’ imprisonment. When I sentence him for that matter he asks that…

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 Pemble

Details

AGLC: R v Pemble [2015] NSWDC 168
Case: [2015] NSWDC 168
Decision Date: 23 July 2015

CaseChat Overview and Summary

The matter of R v Pemble was heard in the High Court of Australia. The respondent, Pemble, was convicted of indecent assault on a child under the age of 16. The case involved a historical sexual assault, with significant consequences for the victim. The respondent sought to appeal the sentence imposed, which was determined under the existing tariff for such offences.

The central issue before the court was whether the sentencing tariff for historical sexual offences adequately reflected the gravity of such crimes and their impact on the victims. The respondent argued that the tariff did not sufficiently account for the unique circumstances of historical sexual assaults and their long-term effects on victims. The court needed to determine whether the sentence imposed was appropriate and whether the respondent's appeal should be upheld.

The court held that the sentencing tariff for historical sexual offences provided a framework that adequately reflected the seriousness of such crimes and their impact on victims. The court noted that while each case must be considered on its merits, the tariff offered a consistent approach that balanced the need for deterrence and rehabilitation with the specific circumstances of the offence. The court found that the sentence imposed was appropriate and did not constitute an error of law. Consequently, the appeal was dismissed, and the original sentence stood.

The High Court confirmed the sentence of imprisonment for a period of 18 months with a non-parole period of 9 months. The court's decision underscored the importance of the sentencing tariff in ensuring consistency and fairness in the judicial process while recognising the unique challenges posed by historical sexual assault cases.

Orders

Orders of the court

The offender is sentenced to imprisonment for a period of 18 months with a non-parole period of 9 months.

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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Medium Neutral Citation:	R v Pemble [2015] NSWDC 168
Hearing dates:	23 July 2015
Date of orders:	23 July 2015
Decision date:	23 July 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to imprisonment for a period of 18 months with a non-parole period of 9 months.
Catchwords:	CRIMINAL LAW- Sentence – Form 1 - Historical sexual assault - Sentencing as per existing tariff - Indecent assault - Significant consequences for victim
Legislation Cited:	Crimes Act
Category:	Sentence
Parties:	The Crown Peter William Pendle
Representation:	Solicitors: Director of Public Prosecutions Greg Walsh and Co - Offender
File Number(s):	2014/238932
Publication restriction:	There is to be no publication of the name of the complainant or any material which may tend to identify the complainant