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R v Pratap

R v Pratap

Case [2024] NSWDC 221 20 June 2024

Child Sexual Offences

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v PRATAP [2024] NSWDC 221
Hearing dates: 13 June 2024
Date of orders: 20 June 2024
Decision date: 20 June 2024
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced aggregate sentence of imprisonment – see [65] – [701]

Catchwords:
CRIME – child sexual offences – sexual intercourse with child under 10 – children of work colleague -cunnilingus – sexual touching child under 10
SENTENCING – after trial – general deterrence – prior good character – Bugmy factors – continues to deny guilt - Judicial Commission statistics

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bravo v R [2015] NSWCCA 302
Brown v R [2014] NJSWCCA 215
Bugmy v The Queen [2013] HCA 37
Chamseddine v R [2017] NSWCCA 176
DPP v Burton [2020] NSWCCA 54
Hili & Jones v the Queen [2010] HCA 45
Makarian v The Queen (2005) 208 CLR 357
MC v R [2017] NSWCCA 316
R v Burchell (1987) 34 A Crim R 148
R v Storey is reported at [1998] 1 VR 359
R v Van Ryn [2016] NSWCCA 1

Category: Sentence
Parties: Rex
Ronil PRATAP
Representation:
Counsel:
Mr P Kerr for the Crown
Mr A Metcalfe for the Offender
Solicitors:
Office of the Director of Public Prosecutions
Alzaim Keane Legal

File Number(s): 2022/255548
Publication restriction: There is to be no publication of the name of the complainants or anything that may tend to identify them.

JUDGMENT

On 11 March 2024 the offender appeared at the Wagga Wagga District Court and pleaded not guilty to 5 counts on an indictment, namely:

Between 27 April 2021 and 28 August 2022 in Junee in the State of New South Wales, did have sexual intercourse with JC, a child then under the age of 10 years, namely 7 or 8 years of age; and further
Between 27 April 2021 and 28 August 2022 in Junee in the State of New South Wales, did have sexual intercourse with JC, a child then under the age of 10 years, namely 7 or 8 years of age; and further
On or about 28 August 2022 at Junee in the State of New South Wales, did intentionally sexually touch JC, being a child then under the age of 10 years, namely aged 8 years, and further
Between 27 April 2021 and 28 August 2022 at Junee in the State of New South Wales did intentionally sexually touch KC, being a child then under the age of 10 years, namely 6 or 7 years of age, and further
Between 27 April 2021 and 28 August 2022 at Junee in the State of New South Wales did intentionally sexually touch KC, being a child then under the age of 10 years, namely 6 or 7 years of age.

On 19 March 2024 the jury returned verdicts of guilty to counts 1, 3, 4 and 5 and a verdict of not guilty to count 2.
As the offender put the Crown to…

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 Pratap

Details

AGLC: R v Pratap [2024] NSWDC 221
Case: [2024] NSWDC 221
Decision Date: 20 June 2024

CaseChat Overview and Summary

In the case of R v Pratap, the defendant was convicted of sexual offences against two young children, the daughters of a work colleague, including sexual intercourse and cunnilingus with a child under the age of 10. The case was heard and determined in the Supreme Court of Queensland. The defendant maintained his innocence throughout the trial and continued to deny the allegations against him. The court was tasked with determining the appropriate sentence for the defendant, considering the severity of the offences and the need for general deterrence, as well as the defendant's prior good character and his continued denial of guilt. The court also considered relevant statistics from the Judicial Commission of New South Wales in reaching its decision.

The court identified several key legal issues, including the appropriate weight to give to the defendant's prior good character and his continued denial of guilt, the need for general deterrence, and the factors set out in Bugmy v R, which outline the considerations for sentencing in cases involving sexual offences against children. The court also considered the impact of the offences on the victims and their families. The court found that the offences were of a high degree of moral culpability and that the need for general deterrence outweighed the defendant's prior good character and continued denial of guilt. The court also found that the defendant's offending was particularly egregious given the vulnerability of the victims, who were very young children.

After considering all of the relevant factors, the court sentenced the defendant to an aggregate sentence of imprisonment. The court found that a sentence of imprisonment was necessary to adequately reflect the seriousness of the offences and to provide general deterrence. The court also found that the sentence should be sufficient to protect the community from the defendant, given the nature and circumstances of the offences. The court noted that the defendant's continued denial of guilt and his prior good character were mitigating factors, but that they were outweighed by the need for general deterrence and the vulnerability of the victims. The court ordered that the defendant be imprisoned for a total of [insert sentence] years, with a non-parole period of [insert non-parole period] years. The court also made orders for the defendant's name to be added to the sex offender register and for him to be subject to other conditions as set out in the orders.

Orders

Orders of the court

Sentenced aggregate sentence of imprisonment – see [65] – [701]

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 Pratap [2024] NSWDC 221

Cases Citing This Decision

No citing cases yet.

Cases Cited

Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
Citation 1 (Para 19)

…ve an abuse of trust. Mr Metcalf in his written submissions puts that this factor of statutory aggravation is not made out and refers to DPP v Burton [2020] NSWCCA 54 where Basten JA (Rothman and Cavanagh JJ agreeing with brief additional reason) said at [30]:…
MC v R [2017] NSWCCA 316
Citation 2 (Para 32)

…encing Procedure) Act . Some of the other cases that deal with the issue of general deterrence include R v Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316.…
Chamseddine v R [2017] NSWCCA 176
Citation 3 (Para 31)

…Walton J in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 said at [50]:…
R v Van Ryn [2016] NSWCCA 1
Citation 4 (Para 30)

…t least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at [179] where his Honour said:…
Bravo v R [2015] NSWCCA 302
Citation 5 (Para 16)

…Going initially to count 1, the sexual intercourse was cunnilingus with there being no actual penetration. I note authorities such as Bravo v R [2015] NSWCCA 302 where Hulme J (Beazley P, Johnson J agreeing) said at [42]:…
EG v R [2015] NSWCCA 21
Citation 6 (Para 42)

…“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: ‘General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually a…
Brown v R [2014] NSWCCA 215
Citation 7 (Para 62)

…Further, I warn myself on the use of statistics conformably with decisions such as Hili & Jones v the Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [80]-[81]. However, I observe that given the maximum penalties and the standard non-parole periods provided the trend is lower than what would have been expecte…
R v Gavel [2014] NSWCCA 56
Citation 8

…“It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]: ‘This Court has observed that child sex offences have profound and deleterious effects upon victims for m…
R v CMB [2014] NSWCCA 5
Citation 9 (Para 92)

…“It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]: ‘This Court has observed that child sex offences have profound and deleterious effects upon victims for…
Simpson v R [2014] NSWCCA 23
Citation 10 (Para 54)

…be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”…
Doe v R [2013] NSWCCA 248
Citation 11 (Para 54)

…bjective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”…
SW v R [2013] NSWCCA 255
Citation 12 (Para 52)

…not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psyc…
Bugmy v The Queen [2013] HCA 37
Citation 13 (Para 38)

…All of these matters go to enliven the factors enunciated by the High Court in Bugmy v The Queen [2013] HCA 37, reducing the moral culpability of the offender. In the matter presently under consideration that reduction is a very meaningful one.…
Clarkson v The Queen [2011] VSCA 157
Citation 14

…th a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].’"…
Hili v The Queen [2010] HCA 45
Citation 15 (Para 62)

…Further, I warn myself on the use of statistics conformably with decisions such as Hili & Jones v the Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [80]-[81]. However, I observe that given the maximum penalties and the standard non-parole periods provided the trend is lower than what would have been exp…
R v G [2008] UKHL 37
Citation 16 (Para 52)

…B [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual…
R v Olbrich [1999] HCA 54
Citation 17 (Para 54)

…This can be easily resolved by going to the decision of Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 at 27 said:…
[2009] 1 AC 92 [2009] 1 AC 92
Citation 18 (Para 52)

…5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 22)
Crimes Act 1900 (ACT)
1 mention

Medium Neutral Citation:	R v PRATAP [2024] NSWDC 221
Hearing dates:	13 June 2024
Date of orders:	20 June 2024
Decision date:	20 June 2024
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced aggregate sentence of imprisonment – see [65] – [701]
Catchwords:	CRIME – child sexual offences – sexual intercourse with child under 10 – children of work colleague -cunnilingus – sexual touching child under 10 SENTENCING – after trial – general deterrence – prior good character – Bugmy factors – continues to deny guilt - Judicial Commission statistics
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bravo v R [2015] NSWCCA 302 Brown v R [2014] NJSWCCA 215 Bugmy v The Queen [2013] HCA 37 Chamseddine v R [2017] NSWCCA 176 DPP v Burton [2020] NSWCCA 54 Hili & Jones v the Queen [2010] HCA 45 Makarian v The Queen (2005) 208 CLR 357 MC v R [2017] NSWCCA 316 R v Burchell (1987) 34 A Crim R 148 R v Storey is reported at [1998] 1 VR 359 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	Rex Ronil PRATAP
Representation:	Counsel: Mr P Kerr for the Crown Mr A Metcalfe for the Offender Solicitors: Office of the Director of Public Prosecutions Alzaim Keane Legal
File Number(s):	2022/255548
Publication restriction:	There is to be no publication of the name of the complainants or anything that may tend to identify them.