R v Philip - [2024] NSWDC 93

District Court

New South Wales

Medium Neutral Citation: R v Philip [2024] NSWDC 93
Hearing dates: 13 March 2024
Date of orders: 15 March 2024
Decision date: 15 March 2024
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
The offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 4 years with an aggregate non-parole period of 32 months.

Catchwords:
Criminal Law – Sentence – Two counts of sexual misconduct – Aggravated sexual intercourse with act of indecency – Victim 14 years old – Position of trust – Prospect of reoffending – Special circumstances.

Legislation Cited:
Crimes Act
Crimes (Sentencing Procedure) Act 1999.

Cases Cited:
Mill v R (1988) 166 CLR 59
Nguyen v R [2007] NSWCCA 14
R v Bussey [2020] NSWDC 802
R v Daley [2010] NSWCCA 223
R v Oxley [2022] NSWDC 2000
YardleyvBetts (1979) 22 SASR 108

Category: Sentence
Parties: The Crown
Corey Anthony Philip
Representation:
Counsel:
K Biffin Solicitor Advocate – The Crown
M Higgins - The offender
Solicitors:
Director for Public Prosecutions – The Crown
Cullen Lawyers – The offender

File Number(s): 2022/00054217
Publication restriction: There is to be no publication of the names of the complainants or of any material which may tend to identify the complainants.

Judgment : ex tempore

INTRODUCTION

The offender is before the Court to be sentenced for two crimes he committed in 2003, when he was 24 years old.

THE OFFENCES AND VERDICTS

On 20 October 2023 following a trial before me and a jury of 12 the offender was found guilty in the Lismore District Court of one count of aggravated sexual intercourse without consent - under 16 years in breach of s 61J(1) of the Crimes Act (Count 1).
The maximum penalty for this offence is 20 years imprisonment with a ten year standard non-parole period.
The offender was also found guilty of one count of aggravated assault with act of indecency in breach of s 61M(1) of the Crimes Act. (Count 3)
The maximum penalty for this offence is seven years imprisonment with a five year standard non-parole period.
The events giving rise to the verdicts occurred sometime around Christmas 2003 at or near the Hastings Point camping ground in northern New South Wales.

SENTENCE HEARING

On 15 March 2023 I received evidence and heard submissions - both written and oral, from the Crown and the offender as to the appropriate sentence.

THE ESSENTIAL FACTS

I find beyond reasonable doubt the following:
During the victim’s childhood he and his family would, on an annual basis, travel to Hastings Point in northern New South Wales and camp there for three or four weeks over the Christmas holiday period.
The victim’s family and the offender’s family became friends with one another as they all camped there at the same time each year.
As at 2003 the offender was ten years older than the victim. The victim was 14 years of age and the offender was 24 years of age.
Notwithstanding…

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 Philip

Details

AGLC: R v Philip [2024] NSWDC 93
Case: [2024] NSWDC 93
Decision Date: 15 March 2024

CaseChat Overview and Summary

The appellant, Philip, was charged and convicted on two counts of sexual misconduct with a 14-year-old victim, who was in a position of trust in relation to the appellant. The court was tasked with determining an appropriate sentence, considering the nature and circumstances of the offences, the relationship between the offender and the victim, and the prospects of rehabilitation and reoffending.

The central legal issues for the court to consider were the severity and impact of the offences, the breach of trust, and the potential for rehabilitation. The court noted the appellant's position of trust and the heightened vulnerability of the victim due to her age. The court also considered the risk of reoffending and the need for general and specific deterrence. Ultimately, the court determined that the offences warranted a custodial sentence, balancing the need for punishment with the potential for rehabilitation.

In determining the appropriate sentence, the court emphasised the gravity of the offences and the breach of trust. It found that the offences were particularly egregious due to the appellant's position of trust and the victim's vulnerability. The court also considered the appellant's prospects of rehabilitation, noting that while there was some potential, the risk of reoffending was significant. After weighing these factors, the court imposed a head sentence of four years with a non-parole period of 32 months.

The court's decision was informed by the need to balance punishment, deterrence, and the potential for rehabilitation. The sentence reflects the seriousness of the offences and the importance of protecting the community. The court also considered the appellant's prospects of rehabilitation, albeit with a significant risk of reoffending. The final orders of the court reflect this balanced approach, imposing a sentence that is both punitive and rehabilitative in nature.

Orders

Orders of the court

The offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 4 years with an aggregate non-parole period of 32 months.

Background

Background to the litigation

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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 Philip [2024] NSWDC 93
Hearing dates:	13 March 2024
Date of orders:	15 March 2024
Decision date:	15 March 2024
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	The offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 4 years with an aggregate non-parole period of 32 months.
Catchwords:	Criminal Law – Sentence – Two counts of sexual misconduct – Aggravated sexual intercourse with act of indecency – Victim 14 years old – Position of trust – Prospect of reoffending – Special circumstances.
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act 1999.
Cases Cited:	Mill v R (1988) 166 CLR 59 Nguyen v R [2007] NSWCCA 14 R v Bussey [2020] NSWDC 802 R v Daley [2010] NSWCCA 223 R v Oxley [2022] NSWDC 2000 YardleyvBetts (1979) 22 SASR 108
Category:	Sentence
Parties:	The Crown Corey Anthony Philip
Representation:	Counsel: K Biffin Solicitor Advocate – The Crown M Higgins - The offender Solicitors: Director for Public Prosecutions – The Crown Cullen Lawyers – The offender
File Number(s):	2022/00054217
Publication restriction:	There is to be no publication of the names of the complainants or of any material which may tend to identify the complainants.