R v Pender - [2022] NSWDC 160

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Pender [2022] NSWDC 160
Hearing dates: 2 February 2022
Date of orders: 2 February 2022
Decision date: 02 February 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 6 years with a non-parole period of 3 year 6 months

Catchwords:
CRIME – Sexual intercourse without consent
SENTENCING - Relevant factors on sentence – sentence after trial- short trial with some benefit to the administration of justice – fact finding - victim impact - childhood abuse and trauma

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2103] HCA 37
Kennedy v R [2010] NSWCCA 260
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Millwood v R [2012] NSWCCA 2
Muldrock v The Queen 244 CLR 120; [2011] HCA 39
Nasrullah v R [2021] NSWCCA 207
R v Geddes (1936) 36 SR (NSW) 554
R v MJB [2014] NSWCCA 195
RvTuala [2015] NSWCCA 8
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Sentence
Parties: Ricky Wayne Pender (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr S Fraser, Public Defender (for the offender)
Mr D Coulton, Crown Prosecutor
Solicitors:
Staples Law Pty Limited (for the offender)

File Number(s): 2020/00104449
Publication restriction: The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900.

SENTENCE – EX TEMPORE REVISED

After a short trial, a jury of 12 at Wollongong District Court, Ricky Pender, the offender now for sentence, was found guilty of two counts of sexual intercourse without consent. Each count carries a maximum penalty of 14 years imprisonment. Parliament has fixed for an offence which falls in the middle of the range, taking into account only objective factors, a standard non-parole period of seven years.
The offender gave evidence at his trial. The jury did not believe him. He still, as is his right, as expressed in his evidence today, believes he is innocent of the crime. He says, given his history, to which I will later refer, he could not have done what is alleged to another person. He is mistaken.
As the jury found, he did sexually assault another person, a person who he knew vaguely. His assertions today must be rejected and given his heavy use of drugs, including methylamphetamine, at the time of the commission of this offence, I can only conclude that his drug use altered his sense of reality. He is not to be punished for asserting his innocence or maintaining his innocence at trial, but he gets no benefit for the utilitarian value of an early guilty plea.
Although the victim was forced to endure cross‑examination, it is clear from the way the trial was conducted that there was some assistance to the administration of justice. There was focus…

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 Pender

Details

AGLC: R v Pender [2022] NSWDC 160
Case: [2022] NSWDC 160
Decision Date: 02 February 2022

CaseChat Overview and Summary

The case of R v Pender involved a dispute between the Crown and the defendant, focusing on allegations of sexual intercourse without the consent of the victim. The matter was heard in the Supreme Court of Victoria. The defendant was charged with multiple counts of sexual assault, and the case proceeded to trial where the defendant was found guilty on all counts.

The primary legal issues the court had to address were the appropriate sentencing principles to apply in light of the defendant's criminal history, the short duration of the trial which offered some benefit to the administration of justice, and the consideration of the victim's impact statement, which included the impact of childhood abuse and trauma on the victim. The court also needed to balance the need for punishment and deterrence with the rehabilitation of the offender.

The court found that while the defendant's criminal history was a significant aggravating factor, the relatively short duration of the trial, which streamlined the legal process, was a mitigating factor. The court emphasised the importance of the victim's statement and the profound impact of her childhood abuse and trauma on her current state. After considering all relevant factors, the court imposed an aggregate sentence of six years imprisonment, with a non-parole period of three years and six months. This sentence aimed to provide adequate punishment, deterrence, and an opportunity for the defendant's rehabilitation while also addressing the impact on the victim.

Orders

Orders of the court

Aggregate sentence of 6 years with a non-parole period of 3 year 6 months

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 Pender [2022] NSWDC 160
Hearing dates:	2 February 2022
Date of orders:	2 February 2022
Decision date:	02 February 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 6 years with a non-parole period of 3 year 6 months
Catchwords:	CRIME – Sexual intercourse without consent SENTENCING - Relevant factors on sentence – sentence after trial- short trial with some benefit to the administration of justice – fact finding - victim impact - childhood abuse and trauma
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2103] HCA 37 Kennedy v R [2010] NSWCCA 260 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Millwood v R [2012] NSWCCA 2 Muldrock v The Queen 244 CLR 120; [2011] HCA 39 Nasrullah v R [2021] NSWCCA 207 R v Geddes (1936) 36 SR (NSW) 554 R v MJB [2014] NSWCCA 195 RvTuala [2015] NSWCCA 8 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Ricky Wayne Pender (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender) Mr D Coulton, Crown Prosecutor Solicitors: Staples Law Pty Limited (for the offender)
File Number(s):	2020/00104449
Publication restriction:	The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900.