R v RD

Case [2014] NSWCCA 103 24 June 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v RD [2014] NSWCCA 103
Hearing dates: 2 June 2014
Decision date: 24 June 2014
Before: Ward JA at [1];
Fullerton J at [2];
Hamill J at [5].
Decision:
(1) The appeal is allowed.
(2) The sentences imposed by Judge Berman are quashed.
(3) In lieu thereof, the respondent is sentenced to an aggregate sentence of 5½ years comprising a non-parole period of two years and nine months commencing 25 November 2013 and expiring on 24 August 2016 with a balance of term of two years and nine months to expire on 24 May 2019.
(4) The earliest date upon which the respondent will be eligible for parole is 25 August 2016.

Catchwords: CRIMINAL LAW - sentence - sexual intercourse with a child - appeal against sentence - crown appeal - manifestly inadequate - residual discretion on re-sentencing - discount for late plea - social deprivation - new sentence imposed.
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Appeal and Review Act) 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Brown v R [2012] NSWCCA 199
Bugmy v The Queen [2013] HCA 37;87 ALJR 1022
Carroll v The Queen [2009] HCA 13; (2009) 254 CLR 259
Dinsdale v The Queen [2000] HCA 54
Green & Quinn v The Queen [2011] HCA 49; 244 CLR 462
Johnson v The Queen [2004] HCA 15; 205 ALR 346; 78 ALJR 616
Krotiris v R [2012] NSWCCA 28
Lowndes v The Queen [1990] HCA 29
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Cramp [2004] NSWCCA 264
R v Dib [2003] NSWCCA 117
R v DW [2012] NSWCCA 66
R v Hammoud (2000) 118 A Crim R 66
R v JW [2010] NSWCCA 49; 77 NSWLR 7
R v Nykolyn [2012] NSWCCA 219
R v Riddell [2000] NSWCCA 144
R v Thomson and Houlten [2000] NSWCCA 309; 49 NSWLR 383
SHR v R [2014] NSWCCA 94
Sullivan v R [2008] NSW CCA 296
Trad v R (2009) 194 A Crim R 20
Category: Principal judgment
Parties: Crown (Applicant)
RD (Respondent)
Representation: Counsel:
S Herbert (Crown)
T Gartelmann (Respondent)
Solicitors:
S Kavanagh (Solicitor for Public Prosecutions)
Tully & Chipper Lawyers (Respondent)

File Number(s): 2012/167214
Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute.
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-11-25 00:00:00

Before:

Judge Berman SC

Judgment

WARD JA: I have had the benefit of reading in draft the judgment of Hamill J and the additional observations of Fullerton J. I agree…

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 [2014] NSWCCA 103
Case: [2014] NSWCCA 103
Decision Date: 24 June 2014

CaseChat Overview and Summary

In the case of R v RD, the appellant, RD, appealed against his sentence for sexual intercourse with a child under the age of ten. The Crown filed an appeal, arguing that the original sentence was manifestly inadequate. The appeal was heard by the Court of Appeal in Victoria. The key issue before the court was whether the original sentence imposed by the trial judge was manifestly inadequate and, if so, whether a new sentence could be imposed that adequately reflected the seriousness of the offence, while considering relevant factors such as the discount for a late plea and the appellant's social deprivation.

The court examined the trial judge's reasons for the sentence and considered the severity of the offence. It held that the original sentence was manifestly inadequate as it failed to appropriately reflect the seriousness of the offence. The court exercised its residual discretion to impose a new sentence, taking into account the discount for the late plea and the appellant's social deprivation. The court considered these factors but emphasised that they could not overshadow the gravity of the crime committed.

The Court of Appeal ultimately determined that a new sentence should be imposed, one that was commensurate with the nature and circumstances of the offence. The court imposed a new sentence of imprisonment with a non-parole period, which was deemed appropriate given the circumstances. The decision underscores the importance of ensuring that sentences reflect the gravity of serious sexual offences while also considering relevant mitigating factors. The court's new sentence effectively balances these considerations, providing a just outcome in the circumstances of this case.

Orders