CRIME - child sex offences - sexual intercourse with child 11 years old - offender was 16 or 17 years old - half siblings - digital penetration - reported 8 years later - plea of guilty
SENTENCING - no hierarchy of seriousness of sexual intercourse offences - age of offender and immaturity at time of offence to be taken into account - whether offence committed in home of victim can be factor of statutory aggravation - vulnerability of victim - criminal history of the offender - delay - Bugmy factors - dysfunctional background - effect of COVID-19 on incarceration
Solicitors: Mr C Hasler for the Director of Public Prosecutions
File Number(s):
2021/311980
Publication restriction:
Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) publication of the names of any matter which could identify the offender and the victim is prohibited. Pursuant to s 578A of the Crimes Act 1900 (NSW) publication of any matter which could identify the victim is prohibited.
Judgment
The offender appeared before a Magistrate at the Local Court on 4 May 2022 and pleaded guilty to one count contrary to s 61J of the Crimes Act, 1900 namely:
That (he) between 1 January 2013 and 19 April 2013 in (town) in New South Wales did have sexual intercourse with KB without her consent and knowing that she was not consenting to the sexual intercourse in circumstances of aggravation, namely that at the time of the offence KB was a person aged under the age of 16 years, namely being in fact aged 11 years.
The plea of guilty was adhered to at the sentence hearing on 31 October 2022. The offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The maximum penalty prescribed for the offence is 20 years imprisonment. Parliament has specified a standard non-parole period of 10 years. It is accepted by both parties that the standard non-parole…
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.
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Details
AGLC
R v RB (No 3) [2022] NSWDC 580
Case
[2022] NSWDC 580
Decision Date
CaseChat Overview and Summary
The case of R v RB (No 3) involved the respondent, RB, who was charged with engaging in sexual intercourse with an 11-year-old child, who was his half-sister. The offence occurred when RB was either 16 or 17 years old and involved digital penetration. The crime was reported eight years after it occurred, and RB entered a guilty plea. The matter was heard in a relevant Australian court, and the primary focus was on sentencing considerations.
The legal issues before the court included determining whether there was a hierarchy in the seriousness of sexual intercourse offences and whether the age of the offender and their immaturity at the time of the offence should be taken into account. Additionally, the court had to decide whether the fact that the offence was committed in the victim's home could be considered a factor of statutory aggravation. The vulnerability of the victim, RB's criminal history, the delay in reporting the offence, and the factors outlined in Bugmy v R were also considered. Furthermore, RB's dysfunctional background and the impact of COVID-19 on incarceration were examined.
The court considered the lack of a hierarchy in the seriousness of sexual offences and recognised the significance of RB's age and immaturity at the time of the offence. The court held that while the offence occurring in the victim's home could be a factor of statutory aggravation, it was not determinative of the sentence. The vulnerability of the victim, RB's criminal history, the delay in reporting, and the Bugmy factors were all weighed in the sentencing decision. Additionally, the court took into account RB's dysfunctional background and the impact of COVID-19 on incarceration. Ultimately, the court sentenced RB, with specific details provided in paragraphs [62] to [65].