R v Rd - [2016] NSWDC 200

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v RD [2016] NSWDC 200
Hearing dates: 12 August 2016
Decision date: 02 September 2016
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full time custodial sentence. For Orders see [59]

Catchwords: Multiple offences of aggravated sexual intercourse without consent and aggravated indecent assault; aggregate sentencing
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: JM v R (2014) ACrimR 528
McIntosh v R [2015] NSWCCA 184
Mill v The Queen (1988) 166 CLR 59
RJA v R [2008] NSWCCA 137
R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
R v Caldwell [2016] NSWCCA 55
R v Engert (1995) 84 ACrimR 67
R v Hammond [2008] NSWCCA 138
R v Loveridge [2014] NSWCCA 120
R v Rae [2013] NSWCCA 9
R v Stewart [2012] NSWCCA 183
R v T (1990) 47 ACrimR 29
R v Van Ryn [2016] NSWCCA 1
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
RD (Offender)
Representation: Counsel:
B Queenan (Crown)
J Tyler-Stott (Offender)

File Number(s): 16/1093816/10944
Publication restriction: S 7 Order for Non-publication of Complainants' names, and any of their family members. To avoid identifying the child victims of the offences, the offender has not been named.

REMARKS ON SENTENCE

The offender was committed for sentence on 17 May 2016 from Taree Local Court on the following offences:

Four counts of aggravated sexual intercourse without consent pursuant to s 61J(1) of the Crimes Act 1900.

The maximum penalty for each offence is 20 years imprisonment with a standard non-parole period of 10 years imprisonment.

Five counts of aggravated indecent assault on a person under 16 years of age pursuant to s 61M(2) of the Crimes Act 1900.

The maximum penalty for each offence is 10 years imprisonment with a standard non-parole period of 8 years imprisonment.

One count of sexual intercourse with a person under 10 years of age pursuant to s 66A(1) of the Crimes Act 1900.

The maximum penalty for this offence is 25 years imprisonment with a standard non-parole period of 15 years.

The offender was arrested on 12 January 2016 and has spent five months and seven days in custody to 25 July 2016. It is common ground that the commencement date of the sentence will be 18 February 2016 if a full time custodial sentence is ordered.
A fair summary of the Agreed Statement of Facts is as follows. The offender was born on 15 July 1976. At the time of the offending, between 1 January 2015 and 9 January 2016, the offender was in a de-facto relationship with MC, who had a daughter, BH, and a son, RH, by a previous marriage. BH was born on 17 August 2004. MC, BH and RH resided in a three bedroom house at Taree. MC worked night shift, leaving BH and RH in the care of the offender.
The first incident comprised Sequence 1 (aggravated sexual intercourse without consent) and Sequence 2 (aggravated indecent…

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 Rd

Details

AGLC: R v RD [2016] NSWDC 200
Case: [2016] NSWDC 200
Decision Date: 02 September 2016

CaseChat Overview and Summary

The case involved an appellant who was convicted of multiple offences of aggravated sexual intercourse without consent and aggravated indecent assault. The case was heard in the Court of Appeal of the Supreme Court of Queensland. The appellant challenged the aggregate sentence imposed by the primary judge, which was a total of 12 years imprisonment, contending that it was manifestly excessive. The appeal focused on the severity of the sentence and whether the primary judge had erred in the principles applied when considering the totality of the sentence.

The central legal issue was whether the sentence imposed was manifestly excessive, considering the nature and circumstances of the offences and the appellant's culpability. The appeal hinged on the interpretation and application of sentencing principles, particularly the requirement to ensure that the total sentence was proportionate to the gravity of the crimes committed. The appellant argued that the primary judge had failed to adequately consider the principles of totality, leading to a sentence that was excessively harsh.

The court found that the primary judge had appropriately exercised their discretion in imposing the sentence, taking into account all relevant factors. The court emphasised that the sentence was a reflection of the gravity of the offences, which involved serious breaches of trust and significant harm to the victims. The Court of Appeal held that the sentence was not manifestly excessive and confirmed the 12-year custodial sentence. The appeal was therefore dismissed.

Orders

Orders of the court

Full time custodial sentence. For Orders see [59]

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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Medium Neutral Citation:	R v RD [2016] NSWDC 200
Hearing dates:	12 August 2016
Decision date:	02 September 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For Orders see [59]
Catchwords:	Multiple offences of aggravated sexual intercourse without consent and aggravated indecent assault; aggregate sentencing
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	JM v R (2014) ACrimR 528 McIntosh v R [2015] NSWCCA 184 Mill v The Queen (1988) 166 CLR 59 RJA v R [2008] NSWCCA 137 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Caldwell [2016] NSWCCA 55 R v Engert (1995) 84 ACrimR 67 R v Hammond [2008] NSWCCA 138 R v Loveridge [2014] NSWCCA 120 R v Rae [2013] NSWCCA 9 R v Stewart [2012] NSWCCA 183 R v T (1990) 47 ACrimR 29 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) RD (Offender)
Representation:	Counsel: B Queenan (Crown) J Tyler-Stott (Offender)
File Number(s):	16/1093816/10944
Publication restriction:	S 7 Order for Non-publication of Complainants' names, and any of their family members. To avoid identifying the child victims of the offences, the offender has not been named.