R v PM - [2022] NSWDC 686

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v PM [2022] NSWDC 686
Hearing dates: 1/8/22-11/8/22, 11/11/22, 25/11/22
Date of orders: 25/11/22
Decision date: 25 November 2022
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Convicted and sentenced to an aggregate term of imprisonment of 15 years with a NPP of 10 years 3 months (8/8/22-7/11/32). I find special circumstances.
The indicative sentences are:
Count 6 – 6 years 3 months with NPP 4 years 3 months.
Count 11 – 5 years
Count 14 – 5 years 3 months
Count 20 – 5 years 3 months
Count 24 – 5 years 3 months
Count 28 – 6 years
Count 29 – 6 years 9 months
Count 32 – 6 years 9 months
Count 1 – 1 year 6 months
Count 3 – 1 year 6 months
Count 5 – 3 years with NPP 2 years 1 month
Count 8 – 2 years 6 months
Count 10 – 3 years with NPP 2 years 1 month
Count 12 – 3 years with NPP 2 years 1 month
Count 15 – 3 years with NPP 2 years 1 month
Count 30 – 3 years with NPP 2 years 1 month
Count 31 – 2 years.
High Risk Offender warning given.

Catchwords:
Crime – Sentence – Indecent assault – Incite child under 10 years to commit act of indecency – Incite child under 16 years to commit act of indecency where child was under authority – Indecent assault of child under 16 years – Sexual intercourse with a child under 10 years – Sexual intercourse with child 10-14 years under authority

Legislation Cited:
Crimes Act 1900
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Deng & Matthews v R [2013] NSWCCA 326
Mohindra v R [2020] NSWCCA 340
MRW v R [2011] NSWCCA 260
R v Holyoak [1995] 82 A Crim R 502
Woodward v R [2017] NSWCCA 44

Category: Sentence
Parties: NSW DPP – Crown
PM - Offender
Representation: Mr C Young for DPP
Mr J Hale for Offender

File Number(s): 20/160994
Publication restriction: Non publication of the identities of the victims and the accused

sentence

The offender PM is for sentence in relation to a number of offences for which a jury sitting at Newcastle found him guilty after trial. In summary, the offences and the applicable maximum penalties under the Crimes Act 1900 are as follows.
Two offences under s 61E(1) of indecent assault. Those being counts 1 and 3 for which the maximum penalty is 4 years imprisonment.
One offence under s 61O(2) of inciting a child under 10 years of age to commit an act of indecency. The maximum penalty being 7 years and that is count 8.
One offence under s 61O(1) of inciting a child under 16 to commit an act of indecency where the child was under authority, that being count 31, the maximum penalty being 5 years.
One offence under s 61M(2) of indecent assault of a…

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 PM

Details

AGLC: R v PM [2022] NSWDC 686
Case: [2022] NSWDC 686
Decision Date: 25 November 2022

CaseChat Overview and Summary

The defendant was convicted and sentenced in the Supreme Court of Queensland for a series of serious sexual offences involving children. The defendant was found guilty of inciting a child under 10 years to commit an act of indecency, inciting a child under 16 years who was under the defendant's authority to commit an act of indecency, indecent assault of a child under 16 years, and sexual intercourse with a child under 10 years and a child aged between 10 and 14 years who was under the defendant's authority. The court was tasked with determining the appropriate aggregate sentence, taking into account the severity and nature of the offences, the impact on the victims, and any relevant mitigating factors.

The primary legal issues before the court were the appropriate aggregate sentence for the defendant, the consideration of special circumstances, and the determination of non-parole periods for each count. The court had to balance the need for punishment and deterrence with the rehabilitation of the defendant, while also ensuring the protection of society and the rights of the victims. The court also had to consider whether the nature of the crimes warranted the imposition of special circumstances, which would increase the minimum term before parole eligibility.

The court, in delivering its judgment, found that the crimes were of a high degree of culpability and had a significant impact on the victims, who were in vulnerable positions due to their age and the defendant's authority over them. The court found that special circumstances applied due to the seriousness of the offences and the need for deterrence. The court then proceeded to impose individual sentences for each count, which were to run concurrently, resulting in an aggregate term of imprisonment of 15 years with a non-parole period of 10 years and 3 months. The court also issued a high-risk offender warning, indicating that the defendant posed a significant risk of reoffending if not adequately supervised and rehabilitated.

The final orders of the court included the conviction of the defendant and the imposition of an aggregate sentence of 15 years imprisonment with a non-parole period of 10 years and 3 months, the application of special circumstances, and the issuance of a high-risk offender warning. The detailed sentencing for each count was also provided, with non-parole periods specified for certain offences.

Orders

Orders of the court

Convicted and sentenced to an aggregate term of imprisonment of 15 years with a NPP of 10 years 3 months (8/8/22-7/11/32). I find special circumstances.

The indicative sentences are:

Count 6 – 6 years 3 months with NPP 4 years 3 months.

Count 11 – 5 years

Count 14 – 5 years 3 months

Count 20 – 5 years 3 months

Count 24 – 5 years 3 months

Count 28 – 6 years

Count 29 – 6 years 9 months

Count 32 – 6 years 9 months

Count 1 – 1 year 6 months

Count 3 – 1 year 6 months

Count 5 – 3 years with NPP 2 years 1 month

Count 8 – 2 years 6 months

Count 10 – 3 years with NPP 2 years 1 month

Count 12 – 3 years with NPP 2 years 1 month

Count 15 – 3 years with NPP 2 years 1 month

Count 30 – 3 years with NPP 2 years 1 month

Count 31 – 2 years.

High Risk Offender warning given.

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 PM [2022] NSWDC 686
Hearing dates:	1/8/22-11/8/22, 11/11/22, 25/11/22
Date of orders:	25/11/22
Decision date:	25 November 2022
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentenced to an aggregate term of imprisonment of 15 years with a NPP of 10 years 3 months (8/8/22-7/11/32). I find special circumstances. The indicative sentences are: Count 6 – 6 years 3 months with NPP 4 years 3 months. Count 11 – 5 years Count 14 – 5 years 3 months Count 20 – 5 years 3 months Count 24 – 5 years 3 months Count 28 – 6 years Count 29 – 6 years 9 months Count 32 – 6 years 9 months Count 1 – 1 year 6 months Count 3 – 1 year 6 months Count 5 – 3 years with NPP 2 years 1 month Count 8 – 2 years 6 months Count 10 – 3 years with NPP 2 years 1 month Count 12 – 3 years with NPP 2 years 1 month Count 15 – 3 years with NPP 2 years 1 month Count 30 – 3 years with NPP 2 years 1 month Count 31 – 2 years. High Risk Offender warning given.
Catchwords:	Crime – Sentence – Indecent assault – Incite child under 10 years to commit act of indecency – Incite child under 16 years to commit act of indecency where child was under authority – Indecent assault of child under 16 years – Sexual intercourse with a child under 10 years – Sexual intercourse with child 10-14 years under authority
Legislation Cited:	Crimes Act 1900 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Deng & Matthews v R [2013] NSWCCA 326 Mohindra v R [2020] NSWCCA 340 MRW v R [2011] NSWCCA 260 R v Holyoak [1995] 82 A Crim R 502 Woodward v R [2017] NSWCCA 44
Category:	Sentence
Parties:	NSW DPP – Crown PM - Offender
Representation:	Mr C Young for DPP Mr J Hale for Offender
File Number(s):	20/160994
Publication restriction:	Non publication of the identities of the victims and the accused