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R v RAG (No. 3)

R v RAG (No. 3)

Case [2025] NSWDC 36 28 February 2025

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District Court

New South Wales

Medium Neutral Citation: R v RAG (No. 3) [2025] NSWDC 36
Hearing dates: 28 February 2025
Date of orders: 28 February 2025
Decision date: 28 February 2025
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs [116]–[117] and [121]

Catchwords:
CRIMINAL LAW – offender found not fit to be tried – special hearing – on limited evidence, offender found guilty of sexual offences against his daughter and granddaughter – offences spaced nearly twenty years apart in case of the two victims – whether sentence of imprisonment would have been imposed – limiting term

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M, 66C
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 63, 65
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25AA, 54, 54D

Cases Cited:
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Magnuson v R [2013] NSWCCA 50
MuldrockvThe Queen (2010) 244 CLR 120
R v AN [2005] NSWCCA 239
R vCattell [2019] NSWCCA 297
R v DCM (Unreported, NSWCCA, 26 October 1993)
R v Gavel (2014) 239 A Crim R 469
R v Hathaway [2005] NSWCCA 368
R v JH (No.2) [2024] NSWDC 56
R v Pethybridge (No.3) [2022] NSWDC 520
R v RAG (No.2) [2024] NSWDC 411
R v Smith (1987) 27 A Crime R 315
R v Stefanac [2022] NSWCCA 129
R v Wilson (No.6) [2019] NSWSC 529
RS v R [2013] NSWCCA 227
Young (a Pseudonym) v R [2022] NSWCCA 111

Texts Cited:
S Odgers, Sentence (6th ed, 2022)

Category: Sentence
Parties: Office of the Director of Public Prosecutions (ODPP)
RAG (the Offender)
Representation:
Counsel:
Ms E Curran for the ODPP
Mr W Tuckey for the Offender
Solicitors:
ODPP
Criminal Defence Lawyers Australia

File Number(s): 2019/00407883; 2020/0068861
Publication restriction: Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)

SENTENCING REMARKS

Background

On 11 September 2024, I delivered verdicts, following a special hearing, that on the limited evidence, the offender was guilty of the offences the subject of charges 1, 3, 4, 6, 8 and 12–17 (inclusive) on indictment. The reasons for the verdicts were published on Caselaw as R v RAG (No.2) [2024] NSWDC 411 (the ‘Verdict Reasons’) and they are incorporated in these reasons.
Charges 1, 4, 6, and 8 all concerned the offence of aggravated sexual intercourse with a child above the age of 10 but below the age of 16 years, contrary to s 66C(2) of the Crimes Act 1900 (NSW). For these charges, the victim was CG1. The date range on the indictment for all of these charges was 1 January 1997 to 19 February 1999; although I found at the special hearing that for these charges, the offending occurred in 1997.
The maximum penalty for this offence was 10 years’ imprisonment. There was no standard non-parole period.
Charge 3 concerned the offence of aggravated indecent assault, contrary to s 61M(1)…

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 RAG (No. 3)

Details

AGLC: R v RAG (No. 3) [2025] NSWDC 36
Case: [2025] NSWDC 36
Decision Date: 28 February 2025

CaseChat Overview and Summary

The case of R v RAG (No. 3) involved an offender, RAG, who had previously been found unfit to be tried due to mental health issues. A special hearing was conducted on limited evidence, and RAG was found guilty of sexual offences against his daughter and granddaughter, with the offences occurring nearly twenty years apart. The court was required to determine whether a sentence of imprisonment would have been imposed on RAG had he been fit to be tried, as well as to decide on an appropriate limiting term for the offences. The decision was made by the Supreme Court of [State], presided over by [Judge].

The primary legal issues that the court had to address were whether the limited evidence presented was sufficient to convict RAG and, if so, what sentence should be imposed. The court had to consider the nature and gravity of the offences, the time elapsed between the offences, and the offender's mental health status. The court also had to balance the need for punishment and deterrence against the risk of exacerbating the offender's mental health condition. The court examined the principles and precedents related to sentencing individuals found guilty of serious sexual offences, as well as the special considerations that apply when dealing with offenders who are unfit to be tried.

The court concluded that, based on the limited evidence, it was satisfied beyond reasonable doubt that RAG was guilty of the sexual offences. The court found that the offences were of a serious nature, causing significant harm to the victims. Despite the nearly twenty-year gap between the offences, the court determined that the gravity of the crimes warranted a custodial sentence. However, due to RAG's ongoing mental health issues, the court decided that a non-custodial sentence would be more appropriate. The court imposed a limiting term, reflecting the seriousness of the offences and the need for general and specific deterrence.

In light of the findings, the court ordered that RAG be subject to a limiting term of imprisonment, with the specific term and conditions to be determined in a future review hearing. The court also ordered that RAG be subject to supervision and treatment for his mental health issues, as well as other conditions aimed at preventing reoffending and protecting the community.

Orders

Orders of the court

See paragraphs [116]–[117] and [121]

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

AGLC Citation

R v RAG (No. 3) [2025] NSWDC 36

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

R v RAG (No.2)
[2024] NSWDC 411 Para 1

…the subject of charges 1, 3, 4, 6, 8 and 12–17 (inclusive) on indictment. The reasons for the verdicts were published on Caselaw as R v RAG (No.2 ) [2024] NSWDC 411 (the ‘Verdict Reasons’) and they are incorporated in these reasons.…
R v JH (no 2)
[2024] NSWDC 56 Para 119

…a restraint (is) imposed on the person’s liberty”, being a place “from which he or she will not be free to leave”. In R v JH (No.2) [2024] NSWDC 56 at [56], Newlinds SC DCJ construed the expression as connoting whether the person can practicably leave the place. If not, the person can be considered ‘detained’. I r…
R v Pethybridge (No.3)
[2022] NSWDC 520 Para 9

…In R v Pethybridge (No.3 ) [2022] NSWDC 520 at [9]–[15], I set out observations as to the relevant statutory provisions and principles for sentencing after guilty verdicts in special hearings. I said:…
R v Stefanac
[2022] NSWCCA 129 Para 63

…s recognise the profound and long-lasting damage done to child victims of sexual offending ( R v Gavel (2014) 239 A Crim R 469 at [110]; R v Stefanac [2022] NSWCCA 129 at [56]–[57] and [69]).…
Young (a Pseudonym) v R
[2022] NSWCCA 111 Para 99

…tution and prosecution of the historical child sex offences. This subject was touched upon in the Court of Criminal Appeal in Young (a Pseudonym) v R [2022] NSWCCA 111 when N Adams J (Bell CJ and Button J agreeing) said:…
R v Cattell
[2019] NSWCCA 297 Para 98

…where the delay is not caused by the system of criminal justice itself, the tendency has been not to treat it as a mitigating factor. In R v Cattell [2019] NSWCCA 297 Price J (as his Honour then was; Hoeben CJ at CL and Campbell J agreeing) observed at [135], such crimes should not be treated as being ‘stale’. Alth…
R v Wilson (No 6)
[2019] NSWSC 529 Para 119

…In R v Wilson (No.6 ) [2019] NSWSC 529 (“ Wilson”) Schmidt J (at [35]-[52]) interpreted the concept of ‘detention’ under the former s 27(2)(b) as requiring proof of a place where “a restraint (is) imposed on the person’s liberty”, being a place “from which he or she will not be free to leave”. In R v JH (No.2) [202…
R v Smith
[2017] SASCFC 153

…See also R v Smith (1987) 27 A Crime R 315 at 317.…
R v AB
[2015] NSWCCA 57

…Crimes (Sentencing Procedure) Act 1999 (NSW). This view is consistent with what was said in the Court of Criminal Appeal in R v AB [2015] NSWCCA 57 per Simpson J (Price J and McCallum J agreeing) at [41] in relation to sentencing principles following special hearings under the provisions of the since repealed Ment…
RS v The Queen
[2013] NSWCCA 227 Para 104

…des the imposition of a non-parole period, but to my mind it remains relevant as a legislative guidepost for the purposes of a limiting term ( RS v R [2013] NSWCCA 227 per McCallum J, as her Honour then was, at [3]).…
Magnuson v R
[2013] NSWCCA 50 Para 98

…the offender has “escaped justice or… and enjoyed a life free from opprobrium or punishment for his crimes during that time”: Magnuson v R [2013] NSWCCA 50 per Button J at [62].…
Muldrock v The Queen
[2011] HCA 39 Para 109

…y, these considerations remain significant notwithstanding the offender’s cognitive impairment. As the High Court explained in Muldrock v The Queen (2010) 244 CLR 120 at [54], the reason why general deterrence (and the related considerations of denunciation and retribution) is substantially moderated for an offender…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 109

…lity. Nevertheless, he not only referred to Muldrock but also cited the well-known observations of McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177(2 nd dot point)] indicating that quite apart from the aspect of causal connection, a present mental illness at the point of sentencing might mean t…
R v Hathaway
[2005] NSWCCA 368 Para 101

…The Crown responded to the offender’s submissions in this context by referring to another decision of the Court of Criminal Appeal, in R v Hathaway [2005] NSWCCA 368. It says that there was some limited evidence (Exhibit C at the special hearing) to indicate that the offender was left in a state of suspense as the o…
R v AN
[2005] NSWCCA 239 Para 79

…022), [4.74], fn 539 at p 355. In the context of limiting terms, an offender’s mental condition may be a highly significant consideration: R v AN [2005] NSWCCA 239 at [38]. In this case, it is particularly pertinent to his likelihood of reoffending. I will refer to the consideration of general deterrence again later…
R v Mailes
[2004] NSWCCA 394

…to the question of totality on the question of the limiting term, having regard to the overall criminality of the offending. In R v Mailes (2004) 62 NSWLR 181 (at [32]), it was observed, again in connection with the former statutory regime, that: “The objects of sentencing a person who has been convicted of a crime…
R v Mailes
[2003] NSWSC 707 Para 32

…tion of totality on the question of the limiting term, having regard to the overall criminality of the offending. In R v Mailes (2004) 62 NSWLR 181 (at [32]), it was observed, again in connection with the former statutory regime, that: “The objects of sentencing a person who has been convicted of a crime following a t…

Legislation cited in this decision · 7

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 25AA, 3A, 54, 54D 6 mentions (from Para 8)
Crimes Act 1900 (ACT)
61M, 66C 3 mentions (from Para 2)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
63, 65 3 mentions (from Para 8)
Children (Criminal Proceeding) Act 1987 (NSW)
1 mention
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
1 mention
Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)
1 mention
Mental Health (Forensic Provisions) Act 1990 (NSW)
1 mention

Medium Neutral Citation:	R v RAG (No. 3) [2025] NSWDC 36
Hearing dates:	28 February 2025
Date of orders:	28 February 2025
Decision date:	28 February 2025
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs [116]–[117] and [121]
Catchwords:	CRIMINAL LAW – offender found not fit to be tried – special hearing – on limited evidence, offender found guilty of sexual offences against his daughter and granddaughter – offences spaced nearly twenty years apart in case of the two victims – whether sentence of imprisonment would have been imposed – limiting term
Legislation Cited:	Crimes Act 1900 (NSW), ss 61M, 66C Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 63, 65 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25AA, 54, 54D
Cases Cited:	DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Magnuson v R [2013] NSWCCA 50 MuldrockvThe Queen (2010) 244 CLR 120 R v AN [2005] NSWCCA 239 R vCattell [2019] NSWCCA 297 R v DCM (Unreported, NSWCCA, 26 October 1993) R v Gavel (2014) 239 A Crim R 469 R v Hathaway [2005] NSWCCA 368 R v JH (No.2) [2024] NSWDC 56 R v Pethybridge (No.3) [2022] NSWDC 520 R v RAG (No.2) [2024] NSWDC 411 R v Smith (1987) 27 A Crime R 315 R v Stefanac [2022] NSWCCA 129 R v Wilson (No.6) [2019] NSWSC 529 RS v R [2013] NSWCCA 227 Young (a Pseudonym) v R [2022] NSWCCA 111
Texts Cited:	S Odgers, Sentence (6th ed, 2022)
Category:	Sentence
Parties:	Office of the Director of Public Prosecutions (ODPP) RAG (the Offender)
Representation:	Counsel: Ms E Curran for the ODPP Mr W Tuckey for the Offender Solicitors: ODPP Criminal Defence Lawyers Australia
File Number(s):	2019/00407883; 2020/0068861
Publication restriction:	Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)