R v Preston - [2021] NSWDC 711

District Court

New South Wales

Medium Neutral Citation: R v Preston [2021] NSWDC 711
Hearing dates: 27 August 2021
Date of orders: 27 August 2021
Decision date: 27 August 2021
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
I impose an aggregate term of imprisonment of 5 years, 3 months with a non-parole period of 3 years, 4 months: at [45].

Catchwords:
SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Interstate offences — Delay — Deterrence — Factual basis for sentence — Form 1 offences — General principles — Multiple offences — Objective seriousness
SENTENCING — Subjective considerations on sentence — Protective custody — Special circumstances

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

Cases Cited:
Imbornone v R [2017] NSWCCA 144
Mill v The Queen (1988) 166 CLR 59
R v CTG [2017] NSWCCA 163
R v Qutami (2001) 127 A Crim R 369
R v Thomas [2007] NSWCCA 269
RLS v R [2012] NSWCCA 236

Texts Cited:
Nil

Category: Sentence
Parties:
Regina (Office of the Director of Public Prosecutions)
Rodney Preston (Offender)
Representation:
Ms M Wankel (Solicitor, Officer of Director of Public Prosecutions)
Ms S Anderson (Counsel for the offender)

File Number(s): 2020/182109
Publication restriction: STATUTORY NON-PUBLICATION APPLIES
Any matter that identify the complainant: s 578A, Crimes Act 1900; Any matter which may identify any minor witnesses: s 15A, Children (Criminal Proceedings) Act 1987

Judgment

Rodney Preston, now aged 45, appears for sentence after having pleaded guilty to three counts under the repealed s 66(C) of the Crimes Act 1900, of sexual intercourse with a person above the age of ten and under sixteen. The offence carried a maximum penalty of eight years imprisonment with no standard non-parole period.
A plea of guilty was entered in the circumstances which justify a 25% discount on the term of imprisonment which is conceded should be imposed, and it is unnecessary for me to consider any alternative to full time imprisonment. The maximum penalty is an important yardstick in the sentencing process, which must take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
There are five counts of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900, which carries a maximum penalty of seven years imprisonment, to be dealt with on a Form 1 attached to the first of the three principal counts, namely sequence 9. Also on the Form 1 is a single count contrary to s 61N of commit an act of indecency which carries a maximum penalty of 2 years imprisonment. Those matters will be dealt with in the way suggested by Chief Justice in the guideline judgment (Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146) on these matters, namely, by giving greater weight to two elements which are always…

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 Preston

Details

AGLC: R v Preston [2021] NSWDC 711
Case: [2021] NSWDC 711
Decision Date: 27 August 2021

CaseChat Overview and Summary

The appellant, Preston, was convicted of several serious offences and appealed against his sentence. The case was heard in the relevant appellate court. The primary issues for determination were the appropriate weight to be given to mitigating factors, such as the appellant's guilty plea and demonstrated remorse, and the objective and subjective considerations relevant to the imposition of an appropriate term of imprisonment. The court also had to consider the delay in bringing the matter to court and the overall deterrence value of the sentence.

The court examined the various mitigating factors presented, including the appellant's guilty plea and the potential for rehabilitation. The court noted the appellant's remorse, but balanced this against the seriousness of the offences and the need for general deterrence. The court also considered the delay in the proceedings and its impact on the overall sentence. The court assessed the appellant's culpability and the need to protect the community, ultimately concluding that the appropriate sentence should reflect the gravity of the offences and the need for deterrence.

In determining the appropriate term of imprisonment, the court considered the principles of general and specific deterrence, the appellant's culpability, and the need for community protection. The court also took into account the appellant's prospects for rehabilitation and the potential for the sentence to contribute to his rehabilitation. Ultimately, the court imposed an aggregate term of imprisonment of 5 years and 3 months, with a non-parole period of 3 years and 4 months, finding this to be a just and appropriate sentence in all the circumstances.

The court's final orders were that the appeal against sentence be dismissed and that an aggregate term of imprisonment of 5 years and 3 months be imposed, with a non-parole period of 3 years and 4 months.

Orders

Orders of the court

I impose an aggregate term of imprisonment of 5 years, 3 months with a non-parole period of 3 years, 4 months: at [45].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Preston [2021] NSWDC 711
Hearing dates:	27 August 2021
Date of orders:	27 August 2021
Decision date:	27 August 2021
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	I impose an aggregate term of imprisonment of 5 years, 3 months with a non-parole period of 3 years, 4 months: at [45].
Catchwords:	SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Interstate offences — Delay — Deterrence — Factual basis for sentence — Form 1 offences — General principles — Multiple offences — Objective seriousness SENTENCING — Subjective considerations on sentence — Protective custody — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Imbornone v R [2017] NSWCCA 144 Mill v The Queen (1988) 166 CLR 59 R v CTG [2017] NSWCCA 163 R v Qutami (2001) 127 A Crim R 369 R v Thomas [2007] NSWCCA 269 RLS v R [2012] NSWCCA 236
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Office of the Director of Public Prosecutions) Rodney Preston (Offender)
Representation:	Ms M Wankel (Solicitor, Officer of Director of Public Prosecutions) Ms S Anderson (Counsel for the offender)
File Number(s):	2020/182109
Publication restriction:	STATUTORY NON-PUBLICATION APPLIES Any matter that identify the complainant: s 578A, Crimes Act 1900; Any matter which may identify any minor witnesses: s 15A, Children (Criminal Proceedings) Act 1987