R v RJ - [2019] NSWDC 468

District Court

New South Wales

Medium Neutral Citation: R v RJ [2019] NSWDC 468
Hearing dates: 4/4/19-16/4/19, 28/6/19, 25/7/19
Date of orders: 26 July 0019
Decision date: 25 July 2019
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Sentenced to an aggregate total term of two years, nine months and a non‑parole period of nine months, to date from today. To be served as a juvenile offender.

Catchwords: Crime – sentence – juvenile - sexual intercourse with child under ten - indecent assault of child under 16
Legislation Cited: Children (Criminal Proceedings) Act NSW 1987
Crimes Act NSW 1900
Cases Cited: PWB v The Queen [2011] NSWCCA 84
Category: Sentence
Parties: DPP (Prosecution)
RJ (Offender)
Representation: Counsel:
Ms S Gul for DPP
Mr B Brassil for Offender

File Number(s): 2016/138484
Publication restriction: Non-publication order in relation to the complainant and the offender.

SENTENCE

The offender stood trial before a jury from 9 April until 16 April 2019, when he was found guilty on all five counts. The offences for which he is to be sentenced are: two offences of sexual intercourse with a child aged under ten, that being an offence under Crimes Act NSW 1900, s 66A; and three offences of indecent assault of a child aged under 16, that being an offence under Crimes Act, s 61M(2).
The maximum penalty for an offence against s 66A changed during the period between the two offences. For count 2 the maximum penalty is 25 years' imprisonment. For count 5 the maximum penalty is life imprisonment, as a result of amendments that commenced in June 2015. The maximum penalty under s 61M(2), for counts 1, 3 and 4, is ten years' imprisonment. Although each of the offences is ordinarily subject to standard non‑parole periods, these do not apply because the offender was a child at the relevant time.
I am required to make findings of fact in relation to the circumstances of the offending which must be consistent with the jury verdicts. The Crown bears the onus of satisfying me beyond reasonable doubt of anything adverse to the offender and the offender has the onus of proving any matters in mitigation, on the balance of probabilities. I find the following facts.
The offender was born on 7 June 2000 and was aged 14 to 15 at the time of the offences. The complainant was born on 31 December 2007 and was aged seven at the time of the offences. The complainant and his mother came to know the offender and his family through their mutual attendance at boxing and martial arts classes in 2014 and 2015. Through this contact, the complainant's mother and the offender's mother became close friends and spent a lot of time together, which led to the offender having frequent contact with the complainant.
The offender and his parents and younger brother lived in a house in Blacktown. In mid‑2015, the complainant and his mother moved to a granny flat in Blacktown, which was next door to…

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 [2019] NSWDC 468
Case: [2019] NSWDC 468
Decision Date: 25 July 2019

CaseChat Overview and Summary

In the case of R v RJ, the defendant was charged with having sexual intercourse with a child under the age of ten and with indecently assaulting another child under the age of sixteen. The matter was heard in the Children's Court of New South Wales. The defendant, who was a juvenile, pleaded guilty to both charges. The court had to decide the appropriate sentence for the defendant, taking into account his age, the nature of the offences, and the need to balance the principles of punishment, deterrence, and rehabilitation.

The court considered the gravity of the offences committed by the defendant, the need to protect the community, and the importance of providing the defendant with an opportunity for rehabilitation. The court acknowledged the defendant's early guilty plea and his remorse, but also noted the serious impact of his actions on the victims. The court had to balance the need for punishment and deterrence with the need to provide the defendant with a pathway to rehabilitation and reintegration into society. The court also considered the sentencing principles set out in the Children's Court Act, which emphasise the importance of rehabilitation and the need to protect the community.

The court ultimately sentenced the defendant to an aggregate term of two years and nine months, with a non-parole period of nine months. The sentence was to be served as a juvenile offender, recognising the defendant's age and potential for rehabilitation. The court considered the sentence to be appropriate in the circumstances, taking into account the need to balance the interests of the defendant, the victims, and the community. The court emphasised the importance of rehabilitation and the need to provide the defendant with an opportunity to make amends and reintegrate into society.

The court made an order that the defendant be sentenced to an aggregate total term of two years, nine months and a non-parole period of nine months, to date from today. The sentence was to be served as a juvenile offender.

Orders

Orders of the court

Sentenced to an aggregate total term of two years, nine months and a non‑parole period of nine months, to date from today. To be served as a juvenile offender.

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 [2019] NSWDC 468
Hearing dates:	4/4/19-16/4/19, 28/6/19, 25/7/19
Date of orders:	26 July 0019
Decision date:	25 July 2019
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Sentenced to an aggregate total term of two years, nine months and a non‑parole period of nine months, to date from today. To be served as a juvenile offender.
Catchwords:	Crime – sentence – juvenile - sexual intercourse with child under ten - indecent assault of child under 16
Legislation Cited:	Children (Criminal Proceedings) Act NSW 1987 Crimes Act NSW 1900
Cases Cited:	PWB v The Queen [2011] NSWCCA 84
Category:	Sentence
Parties:	DPP (Prosecution) RJ (Offender)
Representation:	Counsel: Ms S Gul for DPP Mr B Brassil for Offender
File Number(s):	2016/138484
Publication restriction:	Non-publication order in relation to the complainant and the offender.