R v RI

Case [2022] NSWDC 676 18 March 2022

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District Court

New South Wales

Medium Neutral Citation: R v RI [2022] NSWDC 676
Hearing dates: 14 December 2021
Decision date: 18 March 2022
Jurisdiction: Criminal
Before: K Robinson DCJ
Decision:
Sentenced to an aggregate term of imprisonment of 20 years; non-parole period 12 years

Catchwords:
CRIME – Sentence – adult maintain unlawful relationship with child – 3 victims related to offender – victims under authority - significant age difference – aggravating factors - plea of guilty – prospects of rehabilitation guarded – continued denial of offending - prior criminal history – background of trauma and abuse – family support – special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act1999

Cases Cited:
Attorney General’s Application No 1 (2002) 56 NSWLR 146
Bugmy v R [2013] HCA 37
BurrvR [2020] NSWCCA 282
GP v R [2021] NSWCA 180
Ibbs v R (1987) 163 CLR 447
Minehan v R [2010] NSWCCA 140
R v Hutchinson [2018] NSWCCA 152
R v Langbein (2008) 181 A Crim R 378
R v Millwood [2012] NSWCCA 2
R v Porte [2015] NSWCCA 174
R v Warwick (No 94) [2020] NSWSC 1168
Veen v R(No 2) (1988)164 CLR 46
Xerri v R [2021] NSWCCA 268

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Mr R I (Offender)
Representation: Counsel:
Crown: Mr N Marney
Defence: Mr B Hancock

File Number(s): 2020/00357705
Publication restriction: Statutory non-publication order re the identity of the victims and anything that may identify them

Judgment

The offender, RI, aged 67 is to be sentenced for three offences of maintaining an unlawful relationship involving three separate children. A statutory non-publication order applies to any material that may identify or lead to the identification of any one of the victims. Accordingly, they will be referred to by their initials only. The specific offences are as follows:

Sequence 30; that between 29 October 1989 and 27 April 1990 at Surry Hills in New South Wales, being an adult, he did maintain an unlawful sexual relationship with a child MM, then aged under 16 years, namely seven years of age, in which he engaged in two or more unlawful sexual acts including having MM perform fellatio on him and indecently assaulting her by rubbing his penis against the outside of her vagina.
Sequence 31; that between 1 September 1996 and 23 December 2005 at Colyton in New South Wales, being an adult, he did maintain an unlawful sexual relationship with a child KG, then aged under 16 years namely between six and 15 years of age, in which he engaged in two or more unlawful sexual acts including digital penetration of her vagina, exposing his penis to her and having her touch it and, exposing his penis to her and pulling her head towards it and;
Sequence 32; that between 1 September 1996 and 31 December 2006 at Colyton in New South Wales, being an adult, he did maintain an unlawful sexual relationship with a child, TB, then aged under 16…

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 RI

Details

AGLC: R v RI [2022] NSWDC 676
Case: [2022] NSWDC 676
Decision Date: 18 March 2022

CaseChat Overview and Summary

The case involved a male defendant, RI, who was charged with engaging in an unlawful relationship with a child, a serious criminal offence under Australian law. The victims in this case were three children, all of whom were related to the offender and were under his authority. The significant age difference between the offender and the victims played a crucial role in the case. RI entered a plea of guilty, but the prospects of his rehabilitation were deemed to be guarded, partly due to his continued denial of the offence and his prior criminal history. The offender's background included a history of trauma and abuse, and he had some family support, which were considered as special circumstances in the sentencing process.

The legal issues before the court included the determination of an appropriate sentence for the offence, taking into account the aggravating factors such as the significant age difference, the number of victims, and the offender's prior criminal history. The court also had to consider the offender's prospects of rehabilitation, his continued denial of the offence, and the special circumstances of his background and family support. The plea of guilty was a mitigating factor, but the court needed to balance this against the aggravating factors and the need to protect the community.

The court, after considering all the relevant factors, found that the offence was of a serious nature and warranted a significant term of imprisonment. The court determined that an aggregate term of imprisonment of 20 years, with a non-parole period of 12 years, was appropriate in this case. The court took into account the offender's background and the special circumstances, but ultimately found that the aggravating factors and the need to protect the community outweighed these considerations. The court also considered the offender's prior criminal history and his continued denial of the offence, which were factors that weighed against a more lenient sentence.

The final orders of the court were that the offender, RI, be sentenced to an aggregate term of imprisonment of 20 years, with a non-parole period of 12 years. The court emphasised the seriousness of the offence and the need to protect the community, while also taking into account the offender's background and the special circumstances of the case. The court's decision reflects the balance that must be struck between the need to punish the offender and the need to consider the individual circumstances of the case.

Orders

Orders of the court

Sentenced to an aggregate term of imprisonment of 20 years; non-parole period 12 years

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

R v RI [2022] NSWDC 676

Cases Citing This Decision

No citing cases yet.

Cases Cited

Xerri v R [2021] NSWCCA 268
Citation 1 (Para 2)

…6EA(1) of the Crimes Act 1900 . Consistent with the majority being Price J, Bell P, as he then was, in agreement and Hamill J dissenting in Xerri v R [2021] NSWCCA 268 at [111], and consistent with the parties' submissions, I accept the applicable maximum penalty for the offences to be life imprisonment. That penalt…
Muriniti v Mercia Financial Solutions Pty Ltd [2021] NSWCA 180
Citation 2

…Cases Cited: Attorney General’s Application No 1 (2002) 56 NSWLR 146 Bugmy v R [2013] HCA 37 Burr v R [2020] NSWCCA 282 GP v R [2021] NSWCA 180 Ibbs v R (1987) 163 CLR 447 Minehan v R [2010] NSWCCA 140 R v Hutchinson [2018] NSWCCA 152 R v Langbein (2008) 181 A Crim R 378 R v Millwood [2012] NSWCCA 2 R v Porte [201…
Burr v R [2020] NSWCCA 282
Citation 3 (Para 45)

…Other factors relevant to the assessment of objective seriousness for this offending are as set out in Burr v R [2020] NSWCCA 282 at [106], acknowledged to also apply to this provision in GP, again at [63]. Also relevant to an assessment of objective seriousness is the maximum penalty that could have been imposed fo…
R v Warwick (No 94) [2020] NSWSC 1168
Citation 4 (Para 5)

…imposed ( Veen v R (No 2) (1988)164 CLR 46). Once all of the relevant factors have been considered and, as Garling J observed in R v Warwick (No 94) [2020] NSWSC 1168 at [15],…
R v Hutchinson [2018] NSWCCA 152
Citation 5 (Para 47)

…seriousness for offending of this type are as stated in Minehan v R [2010] NSWCCA 140 at [94], more recently revised and confirmed in R v Hutchinson [2018] NSWCCA 152, by Meagher J at [45].…
R v Porte [2015] NSWCCA 174
Citation 6 (Para 46)

…e material is acknowledged to be an abhorrent crime described to be "callous and predatory" due to its exploitation and abuse of children ( R v Porte [2015] NSWCCA 174 at [40]). Well-established principles acknowledge that general deterrence is the primary sentencing consideration given the prevalence and ready avai…
Bugmy v The Queen [2013] HCA 37
Citation 7 (Para 86)

…It is submitted, on the offender's behalf, that his background enlivens the principles enunciated in Bugmy v The Queen [2013] HCA 37. The Crown does not challenge that. I accept that the offender's background, wherein he was exposed to violence, alcohol abuse and use, within the home, during his formative years,…
R v Millwood [2012] NSWCCA 2
Citation 8 (Para 86)

…posed him to a custodial environment, wherein he was sexually abused. It is a background consistent with that identified by Simpson J in R v Millwood [2012] NSWCCA 2 at [69], wherein she stated;…
Minehan v R [2010] NSWCCA 140
Citation 9 (Para 47)

…ng the protection of children. The factors relevant to an assessment of objective seriousness for offending of this type are as stated in Minehan v R [2010] NSWCCA 140 at [94], more recently revised and confirmed in R v Hutchinson [2018] NSWCCA 152, by Meagher J at [45].…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 10 (Para 3)

…ware of the principles that apply in considering the Form 1 offence consistent with the guideline judgment in the Attorney General's Application No 1 (2002) 56 NSWLR 146.…
Veen v The Queen (No 2) [1988] HCA 14
Citation 11 (Para 5)

…verlap and may sometimes point in different directions but are important guideposts to the appropriate sentence to be imposed ( Veen v R (No 2) (1988)164 CLR 46). Once all of the relevant factors have been considered and, as Garling J observed in R v Warwick (No 94) [2020] NSWSC 1168 at [15],…
Ibbs v the Queen [1987] HCA 46
Citation 12 (Para 43)

…As the Court noted in Ibbs v R (1987) 163 CLR 447 at [452],…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 3)
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v RI [2022] NSWDC 676
Hearing dates:	14 December 2021
Decision date:	18 March 2022
Jurisdiction:	Criminal
Before:	K Robinson DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 20 years; non-parole period 12 years
Catchwords:	CRIME – Sentence – adult maintain unlawful relationship with child – 3 victims related to offender – victims under authority - significant age difference – aggravating factors - plea of guilty – prospects of rehabilitation guarded – continued denial of offending - prior criminal history – background of trauma and abuse – family support – special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act1999
Cases Cited:	Attorney General’s Application No 1 (2002) 56 NSWLR 146 Bugmy v R [2013] HCA 37 BurrvR [2020] NSWCCA 282 GP v R [2021] NSWCA 180 Ibbs v R (1987) 163 CLR 447 Minehan v R [2010] NSWCCA 140 R v Hutchinson [2018] NSWCCA 152 R v Langbein (2008) 181 A Crim R 378 R v Millwood [2012] NSWCCA 2 R v Porte [2015] NSWCCA 174 R v Warwick (No 94) [2020] NSWSC 1168 Veen v R(No 2) (1988)164 CLR 46 Xerri v R [2021] NSWCCA 268
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Mr R I (Offender)
Representation:	Counsel: Crown: Mr N Marney Defence: Mr B Hancock
File Number(s):	2020/00357705
Publication restriction:	Statutory non-publication order re the identity of the victims and anything that may identify them