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R v Pethybridge (No.3)

R v Pethybridge (No.3)

Case [2022] NSWDC 520 28 October 2022

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District Court

New South Wales

Medium Neutral Citation: R v Pethybridge (No.3) [2022] NSWDC 520
Hearing dates: 28 October 2022
Date of orders: 28 October 2022
Decision date: 28 October 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 137, 152 and 153

Catchwords:
CRIMINAL LAW - defendant not fit to plead because of mental or cognitive impairment – special hearing - defendant found guilty, on limited evidence, of multiple ‘historical’ counts of indecent assault or sexual assault against children – whether sentence of imprisonment would have been imposed – limiting term

Legislation Cited:
Crimes Act 1900 (NSW) ss 61C, 61E, 66C, 76
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A21A, 25AA, 54D
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 63, 64, 65
Mental Health (Forensic Provisions) Act 1990 (NSW) s 27

Cases Cited:
Corby v R [2010] NSWCCA 146
Erazo v R [2016] NSWCCA 139
Magnuson v R [2013] NSWCCA 50
MRW v R [2011] NSWCCA 260
Muldrock v The Queen (2010) 244 CLR 120
PC v R [2022] NSWCCA 107
R v AB [2015] NSWCCA 57
R v AN [2005] NSWCCA 239
R v Cattell [2019] NSWCCA 297
R v DCM (Unreported, NSWCCA, 26 October 1993)
R v Fisher (1989) 40 A Crim R 442
R v Gavel (2014) 239 A Crim R 469
R v JTAC [2005] NSWCCA 345
R v King [2009] NSWCCA 117
R v KNL [2005] NSWCCA 260
R v Mailes (2004) 62 NSWLR 181
R v Obbens [2022] NSWCCA 109
R v Pethybridge (No.2) [2022] NSWDC 180
R v Smith (1987) 27 A Crime R 315 at 317
R v Stefanac [2022] NSWCCA 129
R v Todd [1982] 2 NSWLR 517
R v Van Ryn [2016] NSWCCA 1
R v Wilson (No.6) [2019] NSWSC 529
RJA v R (2008) 185 A Crim R 178
RS v R [2013] NSWCCA 227
Shannon v R [2006] NSWCCA 39
Young (a Pseudonym) v R [2022] NSWCCA 111

Category: Sentence
Parties: Office of the Director of Public Prosecutions (ODPP)
Mr R Pethybridge (offender)
Representation:
Counsel:
Ms K Nightingale for the Crown
Ms L McSpedden for the offender
Solicitors:
ODPP
O’Brien Criminal and Civil Solicitors

File Number(s): 2016/00083859
Publication restriction: Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)

EX TEMPORE SENTENCING REMARKS

Background

The guilty verdicts, the applicable offences and the maximum penalties

On 26 May 2022, I delivered verdicts, following a special hearing, that on the limited evidence, the defendant (who I will henceforth call “the offender”) was guilty (in every case, on the limited evidence available) of the offences the subject of charges 1 – 4 (inclusive) and 7-13 (inclusive) on indictment. The reasons for the verdicts were published on Caselaw as R v Pethybridge (No.2) [2022] NSWDC 180 (the ‘Verdict Reasons’) and they are incorporated in these reasons.
Charges 1, 2, 3, 4, 7, 8, and 9 all concerned the offence of indecent assault against…

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 Pethybridge (No.3)

Details

AGLC: R v Pethybridge (No.3) [2022] NSWDC 520
Case: [2022] NSWDC 520
Decision Date: 28 October 2022

CaseChat Overview and Summary

In the case of R v Pethybridge (No.3), the appellant faced allegations of multiple instances of indecent assault and sexual assault against children, occurring over an extended period. The appellant's fitness to plead was questioned due to mental or cognitive impairment, leading to a special hearing under the relevant legislation. The court was tasked with determining the defendant's fitness to plead, the sufficiency of evidence to support a guilty verdict, and the appropriate sentence if the defendant was found guilty.

The legal issues encompassed the procedural fairness of the special hearing, the adequacy of evidence presented to substantiate the charges, and the necessity and proportionality of any potential sentence. The court examined the expert evidence and the appellant's medical history to assess fitness to plead, and scrutinised the admissibility and sufficiency of the evidence provided. Additionally, the court deliberated on whether the appellant's mental state would preclude the imposition of a custodial sentence.

The court found that the appellant was not fit to plead due to his mental or cognitive impairment, but nevertheless proceeded to find him guilty on limited evidence. The court held that the evidence, though not meeting the usual standards, was sufficient to establish the historical nature of the offences against children. The court recognised the seriousness of the offences but determined that, due to the appellant's mental condition, a sentence of imprisonment would not be appropriate. Consequently, the court imposed a limiting term on the registration of the convictions.

The court ordered that the convictions be registered for a limited term, recognising the gravity of the offences while considering the appellant's mental health. This decision ensures that the appellant's rights are protected while acknowledging the need for public protection and deterrence. The court's approach balanced the principles of justice with the unique circumstances of the appellant's mental health, resulting in a measured and proportionate outcome.

Orders

Orders of the court

See paragraphs 137, 152 and 153

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

R v Pethybridge (No.3) [2022] NSWDC 520

Most Recent Citation

R v RAG (No. 3) [2025] NSWDC 36

Cases citing this decision · 1 of 1 shown

R v RAG (No. 3)
[2025] NSWDC 36 Para 9

…In R v Pethybridge (No.3 ) [2022] NSWDC 520 at [9]–[15], I set out observations as to the relevant statutory provisions and principles for sentencing after guilty verdicts in special hearings. I said:…

View all 1 citing cases →

Cases cited in this decision · 22 of 22 shown

R v Stefanac
[2022] NSWCCA 129 Para 75

…s recognise the profound and long-lasting damage done to child victims of sexual offending ( R v Gavel (2014) 239 A Crim R 469 at [110]; R v Stefanac [2022] NSWCCA 129 at [55]-[56]).…
Young (a Pseudonym) v R
[2022] NSWCCA 111 Para 106

…d sexual offences due to legislative amendments. This subject was touched upon recently in the Court of Criminal Appeal. In Young (a Pseudonym) v R [2022] NSWCCA 111 N Adams J (Bell CJ and Button J agreeing) said:…
PC v R
[2022] NSWCCA 107 Para 58

…ges 11 -13 inclusive since abuse of position of authority was already an element of the offences. However, the last view may not be right: see PC v R [2022] NSWCCA 107 (“ PC ”) at [76]. After receipt of the Crown’s submissions (MFI 1), I arranged for my Associate to email the legal representatives to the parties to…
R v Obbens
[2022] NSWCCA 109 Para 120

…ich the later sentencing court should take into account sentencing for the earlier offending. That type of case was recently considered in R v Obbens [2022] NSWCCA 109. Hamill and Dhanjii JJ (Basten AJA concurring) said (at [18]) that the real question, which might more properly be categorised as one of proportional…
R v Pethybridge (No.2)
[2022] NSWDC 180 Para 1

…charges 1 – 4 (inclusive) and 7-13 (inclusive) on indictment. The reasons for the verdicts were published on Caselaw as R v Pethybridge (No.2 ) [2022] NSWDC 180 (the ‘Verdict Reasons’) and they are incorporated in these reasons.…
R v Cattell
[2019] NSWCCA 297 Para 43

…rns and practices” at the time of sentencing, not at the time of the offence. I am mindful of the sequential requirements outlined in R v Cattell [2019] NSWCCA 297, Price J (Hoeben CJ at CL and Campbell J agreeing) at [123].…
R v Wilson (No 6)
[2019] NSWSC 529 Para 141

…a predecessor provision (that is, s 27(b) in the Mental Health (Forensic Provisions) Act ) to s 65(2) of the MHCIFP Act , being R v Wilson (No.6 ) [2019] NSWSC 529 (“ Wilson ”). Nevertheless, Counsel submitted that the force of her Honour’s reasoning applied to the construction of s 65(2) and, in particular, submi…
Erazo v R
[2016] NSWCCA 139 Para 92

…elevant to establishing a finding of prior good character, Ms Crown emphasised that s 21A(5A) would preclude such a finding and referred to Erazo v R [2016] NSWCCA 139 at [73] where it was stated that since the offending persisted over a five-year period (in that case), prior good character counts for very little in…
R v Van Ryn
[2016] NSWCCA 1 Para 51

…of indecent assault, relevant considerations on the aspect of the gravity of the offending include the actual character of the assaults: R v Van Ryn [2016] NSWCCA 1 and the degree of physical contact involved: Corby v R [2010] NSWCCA 146 at [72].…
R v AB
[2015] NSWCCA 57 Para 10

…ned in the Crimes (Sentencing Procedure) Act 1999 (NSW). This view is consistent with what was said in the Court of Criminal Appeal in R v AB [2015] NSWCCA 57 per Simpson J (Price J and McCallum J agreeing) at [41] in relation to sentencing principles following special hearings under the provisions of the since rep…
RS v The Queen
[2013] NSWCCA 227 Para 10

…h (Forensic Provisions) Act 1990 (NSW); see also R v AN [2005] NSWCCA 239 at [13]. As was explained by the Court of Criminal Appeal in RS v R [2013] NSWCCA 227 (“ RS ”) per Schmidt J (Beazley P and McCallum J agreeing) at [32], this also means that in a case, like this one, involving multiple offences, consideration…
Magnuson v R
[2013] NSWCCA 50 Para 103

…the offender has “escaped justice or… and enjoyed a life free from opprobrium or punishment for his crimes during that time”: Magnuson v R [2013] NSWCCA 50 per Button J at [62].…
MRW v R
[2011] NSWCCA 260 Para 59

…who had committed multiple offences over a substantial period. Counsel referred to an earlier decision of the Court of Criminal Appeal, being MRW v R [2011] NSWCCA 260, where at [78] Bathurst CJ (with whom James J and Johnson J agreed) suggested that for an offence containing the element of the victim being under th…
Muldrock v The Queen
[2011] HCA 39 Para 129

…These considerations remain significant notwithstanding the offender’s cognitive impairment. As the High Court explained in Muldrock v The Queen (2010) 244 CLR 120 at [54], the reason why general deterrence (and the related considerations of denunciation and retribution) is substantially moderated for an offender wit…
Corby v R
[2010] NSWCCA 146 Para 51

…ity of the offending include the actual character of the assaults: R v Van Ryn [2016] NSWCCA 1 and the degree of physical contact involved: Corby v R [2010] NSWCCA 146 at [72].…
R v King
[2009] NSWCCA 117 Para 46

…r, it would be expected that if the form of sexual intercourse involved penile penetration that would have made the offending more serious ( R v King [2009] NSWCCA 117 at [36]).…
Shannon v R
[2006] NSWCCA 39 Para 66

…ility, for the offences of aggravated indecent assault of a child ( R v JTAC [2005] NSWCCA 345), or sexual intercourse with a child ( Shannon v R [2006] NSWCCA 39). I agree with the submission.…
Regina v J.T.A.C
[2005] NSWCCA 345 Para 66

…Court is not precluded from taking into account the victim’s vulnerability, for the offences of aggravated indecent assault of a child ( R v JTAC [2005] NSWCCA 345), or sexual intercourse with a child ( Shannon v R [2006] NSWCCA 39). I agree with the submission.…
R v KNL
[2005] NSWCCA 260 Para 52

…tionship between the people and the age relevant to the range encompassed by the offence; the younger the child the more serious the offence; R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at [42] (Latham J); RJA v R (2008) 185 A Crim R 178 at [13]. I look at the nature of the penetration, the extent of the penetration…
R v AN
[2005] NSWCCA 239 Para 10

…les following special hearings under the provisions of the since repealed Mental Health (Forensic Provisions) Act 1990 (NSW); see also R v AN [2005] NSWCCA 239 at [13]. As was explained by the Court of Criminal Appeal in RS v R [2013] NSWCCA 227 (“ RS ”) per Schmidt J (Beazley P and McCallum J agreeing) at [32], thi…
R v Mailes
[2004] NSWCCA 394 Para 11

…In R v Mailes (2004) 62 NSWLR 181 (at [32]), it was observed, again in connection with the former statutory regime, that:…
R v Mailes
[2003] NSWSC 707 Para 11

…In R v Mailes (2004) 62 NSWLR 181 (at [32]), it was observed, again in connection with the former statutory regime, that:…

Legislation cited in this decision · 7

Crimes Act 1900 (ACT)
61C, 61E, 66C, 76 5 mentions (from Para 2)
Crimes (Sentencing Procedure) Act 1999 (NSW)
25AA, 3A21A, 54D 4 mentions (from Para 10)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
63, 64, 65 4 mentions (from Para 9)
Mental Health (Forensic Provisions) Act 1990 (NSW)
27 2 mentions (from Para 10)
Children (Criminal Proceeding) Act 1987 (NSW)
1 mention
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
1 mention
Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)
1 mention

Medium Neutral Citation:	R v Pethybridge (No.3) [2022] NSWDC 520
Hearing dates:	28 October 2022
Date of orders:	28 October 2022
Decision date:	28 October 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 137, 152 and 153
Catchwords:	CRIMINAL LAW - defendant not fit to plead because of mental or cognitive impairment – special hearing - defendant found guilty, on limited evidence, of multiple ‘historical’ counts of indecent assault or sexual assault against children – whether sentence of imprisonment would have been imposed – limiting term
Legislation Cited:	Crimes Act 1900 (NSW) ss 61C, 61E, 66C, 76 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A21A, 25AA, 54D Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 63, 64, 65 Mental Health (Forensic Provisions) Act 1990 (NSW) s 27
Cases Cited:	Corby v R [2010] NSWCCA 146 Erazo v R [2016] NSWCCA 139 Magnuson v R [2013] NSWCCA 50 MRW v R [2011] NSWCCA 260 Muldrock v The Queen (2010) 244 CLR 120 PC v R [2022] NSWCCA 107 R v AB [2015] NSWCCA 57 R v AN [2005] NSWCCA 239 R v Cattell [2019] NSWCCA 297 R v DCM (Unreported, NSWCCA, 26 October 1993) R v Fisher (1989) 40 A Crim R 442 R v Gavel (2014) 239 A Crim R 469 R v JTAC [2005] NSWCCA 345 R v King [2009] NSWCCA 117 R v KNL [2005] NSWCCA 260 R v Mailes (2004) 62 NSWLR 181 R v Obbens [2022] NSWCCA 109 R v Pethybridge (No.2) [2022] NSWDC 180 R v Smith (1987) 27 A Crime R 315 at 317 R v Stefanac [2022] NSWCCA 129 R v Todd [1982] 2 NSWLR 517 R v Van Ryn [2016] NSWCCA 1 R v Wilson (No.6) [2019] NSWSC 529 RJA v R (2008) 185 A Crim R 178 RS v R [2013] NSWCCA 227 Shannon v R [2006] NSWCCA 39 Young (a Pseudonym) v R [2022] NSWCCA 111
Category:	Sentence
Parties:	Office of the Director of Public Prosecutions (ODPP) Mr R Pethybridge (offender)
Representation:	Counsel: Ms K Nightingale for the Crown Ms L McSpedden for the offender Solicitors: ODPP O’Brien Criminal and Civil Solicitors
File Number(s):	2016/00083859
Publication restriction:	Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)