R v PN

Case [2023] NSWDC 170 19 May 2023

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District Court

New South Wales

Medium Neutral Citation: R v PN [2023] NSWDC 170
Hearing dates: 28 April 2023
Decision date: 19 May 2023
Jurisdiction: Criminal
Before: Coleman SC DCJ
Decision:
(1) For the offence of possess child abuse material, and having regard to the matter on the s 16BA schedule, the offender is sentenced to a term of imprisonment of 3 years, commencing on 2 September 2021.
(2) For the State offences, the offender is sentenced to an aggregate term of imprisonment of 37 years, with a non-parole period of 25 years, commencing on 2 September 2022.
(3) The first date the offender will be eligible for release to parole is 1 September 2047.
(4) The sentence expires on 1 September 2059.

Catchwords:
SENTENCING - Multiple child sexual offences - Sexual intercourse with a child under 10 years of age – Possession of child abuse material – Objective seriousness – Prospects of rehabilitation

Legislation Cited:
Crimes Act 1900 (NSW), ss 66A, 66DA, 66EB, 91G
Crimes Act 1914 (Cth), ss 3, 16A, 16AAB, 16BA, 19AB
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D, 53A, 54B
Criminal Code Act 1995 (Cth), ss 474.22, 474.22A

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518
Bravo v R [2015] NSWCCA 302
DG v R [2017] NSWCCA 139
Hraichie v R [2022] NSWCCA 155
Ibbotson (A Pseudonym) v R [2020] NSWCCA 92
Johnson v The Queen [2004] HCA 15
R v Gavel [2014] NSWCCA 56
R v Hutchinson [2018] NSWCCA 152
R v Lamella [2014] NSWCCA 122
R v MAK [2006] NSWCCA 381
R v MJB [2014] NSWCCA 195
R v Taylor [2022] NSWCCA 256
RH McL v The Queen (2000) 203 CLR 452
Sheu v R [2018] NSWCCA 86

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
PN (Offender)
Representation:
Counsel:
Ms J Smith (Crown)
Mr S Bouveng (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid (Offender)

File Number(s): 2021/00251576
Publication restriction:
Suppression order in regard to the identity of the offender, anonymised in these reasons as PN.
Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is a statutory non-publication order in regard to any matter which identifies the complainant or which is likely to lead to the identification of the complainant.

JUDGMENT

The offender, PN, is to be sentenced today for fourteen offences under the Crimes Act 1900 (NSW) (‘Crimes Act’) and one Commonwealth offence under the Criminal Code Act 1995 (Cth) to which he has pleaded guilty, which are contained in the table below:

Count	Offence	Maximum penalty	Standard non-parole period
1	Groom child under 14 years for unlawful sexual activity s 66EB(3), Crimes Act 1900 (NSW)	12 years imprisonment	Yes – 5 years
2	Use child under 14 years to make child abuse material s 91G(1)(a), Crimes Act 1900 (NSW)	14 years imprisonment	Yes – 6 years
3

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 PN

Details

AGLC: R v PN [2023] NSWDC 170
Case: [2023] NSWDC 170
Decision Date: 19 May 2023

CaseChat Overview and Summary

In the matter of R v PN, the respondent was convicted of multiple child sexual offences, including sexual intercourse with a child under 10 years of age, and possession of child abuse material. The case was heard in the relevant Australian court, where the respondent was sentenced. The primary focus of the court was to determine the appropriate penalty for the respondent's crimes, taking into account the objective seriousness of the offences, as well as the prospects for rehabilitation.

The legal issues the court had to decide included the assessment of the objective seriousness of the offences, the appropriate sentence for each offence, and the total sentence to be imposed. The court also had to consider the non-parole period, the first date of eligibility for parole, and the expiration date of the sentence. In determining the sentence, the court considered the gravity of the crimes, the impact on the victims, and the likelihood of rehabilitation.

The court, after evaluating the evidence and arguments presented, found the offences to be of high objective seriousness due to the vulnerability of the victims and the heinous nature of the crimes. The court determined a sentence of 3 years for the possession of child abuse material offence, with a commencement date of 2 September 2021. For the state offences, the court imposed an aggregate term of imprisonment of 37 years, with a non-parole period of 25 years, to commence on 2 September 2022. The first date for parole eligibility was set for 1 September 2047, with the sentence expiring on 1 September 2059.

In conclusion, the court imposed a significant sentence on the respondent, reflecting the gravity of the crimes and the need to protect society from further harm. The court's decision considered the objective seriousness of the offences, as well as the prospects of rehabilitation. The final orders of the court include the imposition of a 3-year imprisonment term for the possession of child abuse material offence, an aggregate 37-year imprisonment term for the state offences, a 25-year non-parole period, and a first parole eligibility date of 1 September 2047.

Orders

Orders of the court

(1) For the offence of possess child abuse material, and having regard to the matter on the s 16BA schedule, the offender is sentenced to a term of imprisonment of 3 years, commencing on 2 September 2021.

(2) For the State offences, the offender is sentenced to an aggregate term of imprisonment of 37 years, with a non-parole period of 25 years, commencing on 2 September 2022.

(3) The first date the offender will be eligible for release to parole is 1 September 2047.

(4) The sentence expires on 1 September 2059.

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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Citations

R v PN [2023] NSWDC 170

Most Recent Citation

PN v R [2024] NSWCCA 86

Cases Citing This Decision

PN v R [2024] NSWCCA 86
Citation 1 (Para 3)

…The total effective sentence is one of 38 years imprisonment with a total effective NPP of 26 years: R v PN [2023] NSWDC 170.…

See all citing cases →

Cases Cited

R v Taylor [2022] NSWCCA 256
Citation 1 (Para 119)

…cation of any discount to the mandatory minimum term was the subject of written and oral submissions by the parties. Reference was made to R v Taylor [2022] NSWCCA 256, in particular the judgment of Simpson AJA at [76]. Ultimately, it was accepted that the Court could apply the 25% discount (and any other discount)…
Hraichie v The The Queen [2022] NSWCCA 155
Citation 2 (Para 106)

…Reference can be made to Hraichie v R [2022] NSWCCA 155, in particular to the discussion by Beech-Jones CJ at CL at [69]-[73] and [96]-[98] where his Honour discussed the application of principles of accumulation and totality, albeit in a different context. His Honour was there considering the application of s 56 of…
R v Lau [2022] NSWCCA 131
Citation 3 (Para 110)

…may have been short, it would not have been for the victim. Each must have been a horrible experience for the child (see the discussion of SB v R [2022] NSWCCA 131 at [55] of the Crown written submissions).…
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Citation 4 (Para 103)

…ch of the indicative sentences, rather than in the aggregate sentence that I will impose: see DG v R [2017] NSWCCA 139 and Ibbotson (A Pseudonym) v R [2020] NSWCCA 92.…
R v Hutchinson [2018] NSWCCA 152
Citation 5 (Para 61)

…nt 15 offence, in reaching the conclusion that the offending was just below the mid-range, I have had regard to the list of factors in R v Hutchinson [2018] NSWCCA 152, referred to at [28] of the Crown submissions and pp. 11-13 of the offender’s written submissions. Save for one matter, I do not regard there to be a…
Sheu v R [2018] NSWCCA 86
Citation 6 (Para 100)

…I cannot impose an aggregate sentence for the State and Commonwealth offences: Sheu v R [2018] NSWCCA 86 at [26]. There was discussion between counsel for the parties and the Court at the hearing as to the appropriate structure. I proposed a structure whereby I imposed a sentence for the Commonwealth offence first,…
DG v R [2017] NSWCCA 139
Citation 7 (Para 103)

…e applied to the sentence will be reflected in each of the indicative sentences, rather than in the aggregate sentence that I will impose: see DG v R [2017] NSWCCA 139 and Ibbotson (A Pseudonym) v R [2020] NSWCCA 92.…
Bravo v R [2015] NSWCCA 302
Citation 8 (Para 96)

…d deleterious effect on the victims for many years, if not the whole of their lives. Psychological damage may follow (see the discussion in Bravo v R [2015] NSWCCA 302 at [48] and the authorities there cited).…
R v MJB [2014] NSWCCA 195
Citation 9 (Para 1)

…is niece: s 21A(2)(k) of the CSPA . The abuse by men of children whom they have access to by reason of familial ties is particularly heinous: R v MJB [2014] NSWCCA 195 at [67] per Adamson J (as her Honour then was);…
R v Lamella [2014] NSWCCA 122
Citation 10 (Para 122)

…For count 15, I have had regard to the matters on the s 16BA schedule. The same principles apply as for the State offences: see R v Lamella [2014] NSWCCA 122 at [48] per Price J.…
R v Gavel [2014] NSWCCA 56
Citation 11 (Para 49)

…ung children, are of their nature extremely serious. The maximum penalties for the offences range from 12 years up to life imprisonment. In R v Gavel [2014] NSWCCA 56, the Court of Criminal Appeal (Leeming JA, Johnson and Hall JJ) said:…
Muldrock v The Queen [2011] HCA 39
Citation 12

…[87] The maximum penalties and standard non-parole periods are important legislative guideposts for the purpose of sentence: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 132 [27]. This is particularly so with respect to the three s.66A(2) offences, each of which carries a maximum penalty of life imprisonme…
R v MAK [2006] NSWCCA 381
Citation 13 (Para 105)

…all of the offences, and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.…
R v Way [2004] NSWCCA 131
Citation 14 (Para 52)

…alty for conduct proscribed by s.66A(2) must be reflected in the sentences which trial courts impose: R v Jurisic (1998) 45 NSWLR 209 at 227; R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [52]; Muldrock v The Queen at 133 [31]; Leslie at 144-145 [79]. [91] As Beech-Jones J observed with respect to s.66A(2) in GN v R at…
Johnson v The Queen [2004] HCA 15
Citation 15 (Para 105)

…ehaviour of the offender, ask myself what is the appropriate sentence for all of the offences, and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 16 (Para 121)

…nce on the offender for the Form 1 offences: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146, per Spigelman CJ.…
R H McL v The Queen [2000] HCA 46
Citation 17 (Para 105)

…lf what is the appropriate sentence for all of the offences, and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 21A, 25D, 53A, 54B
9 mentions (from Para 4)
Crimes Act 1914 (Cth) 16A, 16AAB, 16BA, 19AB, 3
6 mentions (from Para 4)
Crimes Act 1900 (ACT) 66A, 66DA, 66EB, 91G
5 mentions (from Para 1)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (High Risk Offenders) Act 2006 (NSW)
1 mention (from Para 131)
Criminal Code Act 1995 (Cth)
1 mention (from Para 1)

Medium Neutral Citation:	R v PN [2023] NSWDC 170
Hearing dates:	28 April 2023
Decision date:	19 May 2023
Jurisdiction:	Criminal
Before:	Coleman SC DCJ
Decision:	(1) For the offence of possess child abuse material, and having regard to the matter on the s 16BA schedule, the offender is sentenced to a term of imprisonment of 3 years, commencing on 2 September 2021. (2) For the State offences, the offender is sentenced to an aggregate term of imprisonment of 37 years, with a non-parole period of 25 years, commencing on 2 September 2022. (3) The first date the offender will be eligible for release to parole is 1 September 2047. (4) The sentence expires on 1 September 2059.
Catchwords:	SENTENCING - Multiple child sexual offences - Sexual intercourse with a child under 10 years of age – Possession of child abuse material – Objective seriousness – Prospects of rehabilitation
Legislation Cited:	Crimes Act 1900 (NSW), ss 66A, 66DA, 66EB, 91G Crimes Act 1914 (Cth), ss 3, 16A, 16AAB, 16BA, 19AB Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D, 53A, 54B Criminal Code Act 1995 (Cth), ss 474.22, 474.22A
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518 Bravo v R [2015] NSWCCA 302 DG v R [2017] NSWCCA 139 Hraichie v R [2022] NSWCCA 155 Ibbotson (A Pseudonym) v R [2020] NSWCCA 92 Johnson v The Queen [2004] HCA 15 R v Gavel [2014] NSWCCA 56 R v Hutchinson [2018] NSWCCA 152 R v Lamella [2014] NSWCCA 122 R v MAK [2006] NSWCCA 381 R v MJB [2014] NSWCCA 195 R v Taylor [2022] NSWCCA 256 RH McL v The Queen (2000) 203 CLR 452 Sheu v R [2018] NSWCCA 86
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) PN (Offender)
Representation:	Counsel: Ms J Smith (Crown) Mr S Bouveng (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid (Offender)
File Number(s):	2021/00251576
Publication restriction:	Suppression order in regard to the identity of the offender, anonymised in these reasons as PN. Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is a statutory non-publication order in regard to any matter which identifies the complainant or which is likely to lead to the identification of the complainant.