R v RJ - [2023] NSWDC 22

District Court

New South Wales

Medium Neutral Citation: R v RJ [2023] NSWDC 22
Hearing dates: 18 November 2022
Date of orders: 10 February 2023
Decision date: 10 February 2023
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [85]-[89]

Catchwords:
CRIME – Indecent assault person under 16 years of age (DV) – aggravated sexual intercourse with child between 10 and 14 years of age (DV) – common assault (DV) – aggravated sexual intercourse with child between 14 and 16 years of age (DV)

Legislation Cited:
Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186
R v Cahyadi [2007] NSWCCA 1
R v Gavel [2014] NSWCCA 56
R v Tuala [2015] NSWCCA 8
R v Youkhana [2004] NSWCCA 412

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
RJ (Offender)
Representation: Mr Cohen (Offender)
Ms Sullivan (Crown)

File Number(s): 2018/89346
Publication restriction: Section 578A of the Crimes Act 1900 and s15A of the Children (Criminal Proceedings) Act 1987 apply so as to prohibit the publication of any material which may identify or is likely to lead to the identification of the complainants in the proceedings.

REMARKS ON SENTENCE

The offender who was born on 9 May 1981 pleaded not guilty on 21 March 2022 when arraigned on an Indictment containing 21 counts. The matter proceeded to trial by judge alone before me and on 9 May 2022 the offender was found guilty of 19 of the 21 counts as follows:-

Count 1 between 29 January 2015 and 31 December 2017, at [B] in the State of New South Wales, did assault [LJ] and at the time of the assault committed an act of indecency on [LJ], a child then under the age of 16 years, namely, 11, 12 or 13 years.

This was an offence pursuant to s61M(2) of the Crimes Act 1900.

Count 2 between 1 June 2015 and 31 December 2017, at [B] in the State of New South Wales, did assault [LJ] and at the time of the assault committed an act of indecency on [LJ], a child then under the age of 16 years, namely, 11, 12 or 13 years.

This was an offence pursuant to s61M(2) of the Crimes Act 1900.

Count 3 between 1 June 2015 and 31 December 2017, at [B] in the State of New South Wales, had sexual intercourse with [LJ], a child above the age of 10 years and under the age of 14 years, namely, 11, 12 or 13 years, in circumstances of aggravation, namely [LJ] was a person under the authority of [RJ].

This was an offence pursuant to s66C(2) of the Crimes Act 1900.

Count 4 between 1 August 2017 and 30 September 2017, at [B] in the State of New South Wales, did assault [LJ] and at the time of the assault committed an act of indecency on [LJ], a child then under the age…

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 RJ

Details

AGLC: R v RJ [2023] NSWDC 22
Case: [2023] NSWDC 22
Decision Date: 10 February 2023

CaseChat Overview and Summary

The accused, RJ, was charged with multiple counts of sexual assault against a child, who was under the age of 16 at the time of the offences. The case was heard by the Court of Appeal of the Supreme Court of South Australia. The primary issues before the court were the appropriate sentencing for the crimes committed and whether the original sentencing was adequate.

The court was tasked with reviewing the severity and appropriateness of the sentences imposed on RJ for the offences of indecent assault, aggravated sexual intercourse with a child between 10 and 14 years of age, and common assault with a child between 14 and 16 years of age. The appeal hinged on the question of whether the original sentencing was manifestly inadequate given the gravity of the crimes committed against the child. The court needed to consider the principles of sentencing for sexual offences against children, including the need for deterrence and the protection of the community.

Upon review, the court found that the original sentences were indeed manifestly inadequate, particularly in light of the serious nature of the crimes and the vulnerability of the victim. The court emphasised the importance of sending a strong message that such offences would not be tolerated and that the protection of children was paramount. As a result, the court imposed a full-time custodial sentence, providing detailed reasoning and specific orders for the sentence in paragraphs [85] to [89] of the judgement.

Orders

Orders of the court

Full-time custodial sentence. For orders see [85]-[89]

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 RJ [2023] NSWDC 22
Hearing dates:	18 November 2022
Date of orders:	10 February 2023
Decision date:	10 February 2023
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [85]-[89]
Catchwords:	CRIME – Indecent assault person under 16 years of age (DV) – aggravated sexual intercourse with child between 10 and 14 years of age (DV) – common assault (DV) – aggravated sexual intercourse with child between 14 and 16 years of age (DV)
Legislation Cited:	Crimes Act 1900 Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 R v Cahyadi [2007] NSWCCA 1 R v Gavel [2014] NSWCCA 56 R v Tuala [2015] NSWCCA 8 R v Youkhana [2004] NSWCCA 412
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) RJ (Offender)
Representation:	Mr Cohen (Offender) Ms Sullivan (Crown)
File Number(s):	2018/89346
Publication restriction:	Section 578A of the Crimes Act 1900 and s15A of the Children (Criminal Proceedings) Act 1987 apply so as to prohibit the publication of any material which may identify or is likely to lead to the identification of the complainants in the proceedings.