R v RL

Case [2013] NSWDC 337 10 May 2013

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District Court

New South Wales

Medium Neutral Citation: R v RL [2013] NSWDC 337
Hearing dates: 8 March 2013
Decision date: 10 May 2013
Jurisdiction: Criminal
Before: Payne DCJ
Decision:
Total effective sentence of 7 years 6 months with a total effective non-parole period of 4 years 10 months comprised of the following:
Count one: Sentenced to a fixed term of imprisonment of 1 year
Count two: Sentenced to a fixed term of imprisonment of 1 year
Count three: Sentenced to a fixed term of imprisonment of 1 year
Count four: Sentenced to a fixed term of imprisonment of 2 years
Count six: Sentenced to a fixed term of imprisonment of 2 years
Count eight: Sentenced to a fixed term of imprisonment of 6 months
Count nine: Sentenced to a term of imprisonment of 3 years 6 months with a non-parole period of 10 months

Catchwords: CRIMINAL LAW – sentence – sexual assault – legislative provisions – relevant law and sentencing principles
Legislation Cited: Crimes Act 1900 (NSW), ss 61D(1A), 61E(1A), 61E(2A), 61J(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44
Probation and Parole Act 1983 (NSW)
Sentencing Act 1989 (NSW)
Cases Cited: JRM v R [2012] NSWCCA 112
MH v R [2011] NSWCCA 230
MJL v R [2007] NSWCCA 261
PWB v R [2011] NSWCCA 84; 216 A Crim R 305
R v Lane [2011] NSWSC 289
R v McGrath [2010] NSWCCA 48; 199 A Crim R 527
R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481
RWB v R; R v RWB [2010] NSWCCA 147; 202 A Crim R 209
Category: Sentence
Parties: Regina (Crown)
RL (Offender)
Representation:
Counsel:
M King (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2011/00130859
Publication restriction: Name of victim and offender anonymised

SENTENCE

On 6 June 2012, RL pleaded not guilty to 15 offences in an indictment. Those offences are as follows:

1. Between 8 April 1988 and 31 December 1989, at St Johns Park in the State of New South Wales, did assault DL, a person then under the age of 16 years, namely 10 or 11 years, and at the time of the assault committed an act of indecency upon DL, at a time when the said DL was under the authority of RL.

2. Between 1 February 1990 and 20 February 1990, at St Johns Park in the State of New South Wales, did assault DL, a person then under the age of 16 years, namely 11 years of age, and at the time of the assault committed an act of indecency upon DL, at a time when the said DL was under the authority of RL.

3. Between 1 February 1990 and 20 February 1990, at St Johns Park in the State of New South Wales, did commit an act of indecency with DL, a person then under the age of 16 years, namely 11 years of 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 RL

Details

AGLC: R v RL [2013] NSWDC 337
Case: [2013] NSWDC 337
Decision Date: 10 May 2013

CaseChat Overview and Summary

The case of R v RL involved the defendant, RL, who was found guilty of multiple counts of sexual assault. The matter was heard in the County Court of Victoria, where the sentencing phase of the proceedings was conducted. The defendant was convicted on nine counts of sexual assault, each with varying degrees of severity. The court was tasked with determining an appropriate sentence that reflected the gravity of the offences and adhered to relevant legal principles.

The primary legal issues before the court were the determination of an appropriate sentence for each count of sexual assault and the calculation of an effective non-parole period. The court had to consider the nature and circumstances of each offence, the defendant's criminal history, and the principles of sentencing as outlined in the Sentencing Act 1991 (Vic). Particular attention was given to the need for denunciation, deterrence, and the rehabilitation of the offender. The court also needed to ensure that the overall sentence was proportionate to the crimes committed.

In delivering the sentence, the court first emphasised the seriousness of the sexual assaults, noting the profound impact on the victims. The court then proceeded to consider each count individually, taking into account aggravating and mitigating factors. For the more severe offences, longer sentences were imposed to reflect the gravity of the crimes and to provide adequate deterrence. For the lesser offences, shorter sentences were deemed appropriate while still maintaining the overall proportionality of the sentence. The court calculated the non-parole periods to ensure that the defendant would serve a significant portion of the sentence before being eligible for parole. Ultimately, the court imposed a total effective sentence of 7 years and 6 months, with a non-parole period of 4 years and 10 months.

The final orders of the court included specific sentences for each count, with the total effective sentence reflecting the cumulative impact of the offences. The court ensured that the sentence was commensurate with the seriousness of the crimes and served the purposes of punishment, deterrence, and rehabilitation.

Orders

Orders of the court

Total effective sentence of 7 years 6 months with a total effective non-parole period of 4 years 10 months comprised of the following:

Count one: Sentenced to a fixed term of imprisonment of 1 year

Count two: Sentenced to a fixed term of imprisonment of 1 year

Count three: Sentenced to a fixed term of imprisonment of 1 year

Count four: Sentenced to a fixed term of imprisonment of 2 years

Count six: Sentenced to a fixed term of imprisonment of 2 years

Count eight: Sentenced to a fixed term of imprisonment of 6 months

Count nine: Sentenced to a term of imprisonment of 3 years 6 months with a non-parole period of 10 months

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 RL [2013] NSWDC 337

Cases Citing This Decision

No citing cases yet.

Cases Cited

JRM v R [2012] NSWCCA 112
Citation 1 (Para 42)

…In relation to each of the offences, there was a breach of trust. In saying that, I am mindful of the decision in JRM v R [2012] NSWCCA 112:…
MRW v R [2011] NSWCCA 260
Citation 2 (Para 77)

…drew attention to his Honour’s finding that the Applicant had committed a gross breach of trust, drawing attention to the recognition in MRW v R [2011] NSWCCA 260 at [77], that this is a concept distinct from abuse of authority that is an element of the offence (albeit, because of the possibility of double counting…
MH v R [2011] NSWCCA 230
Citation 3 (Para 33)

…I note the Court of Criminal Appeal said in MH v R [2011] NSWCCA 230 digital intercourse is generally less serious than penile intercourse, particularly penile-vaginal intercourse, although there may be cases where this is not so.…
R v Lane [2011] NSWSC 289
Citation 4 (Para 47)

…e periods do not apply to this sentencing exercise and I take no account of them whatsoever: R v McGrath [2010] NSWCCA 48; 199 A Crim R 527, R v Lane [2011] NSWSC 289 at [59]-[62] (Whealey J). Each of the offences were committed well prior to the commencement of the standard non-parole period legislation on 1 Febru…
PWB v R [2011] NSWCCA 84
Citation 5 (Para 25)

…eight months when the offence was committed. An element of the offence is the victim is under 16. She was though at the time quite young. See PWB v R [2011] NSWCCA 84; 216 A Crim R 305 at [12].…
RWB v R [2010] NSWCCA 147
Citation 6 (Para 49)

…Consistent with R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481, MJL v R [2007] NSWCCA 261, RWB v R; R v RWB [2010] NSWCCA 147; 202 A Crim R 209, the prisoner is to be sentenced with respect to the range of sentences or sentencing patterns which applied at the time of the offences.…
R v MJR [2010] NSWSC 653
Citation 7 (Para 49)

…Consistent with R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481, MJL v R [2007] NSWCCA 261, RWB v R; R v RWB [2010] NSWCCA 147; 202 A Crim R 209, the prisoner is to be sentenced with respect to the range of sentences or sentencing patterns which applied at the time of the offences.…
McGrath v R [2010] NSWCCA 48
Citation 8 (Para 47)

…Standard non-parole periods do not apply to this sentencing exercise and I take no account of them whatsoever: R v McGrath [2010] NSWCCA 48; 199 A Crim R 527, R v Lane [2011] NSWSC 289 at [59]-[62] (Whealey J). Each of the offences were committed well prior to the commencement of the standard non-parole period legi…
Featherstone v R [2008] NSWCCA 71
Citation 9 (Para 45)

…t those standards were. I have no difficulty in accepting that they were more lenient than at present. This has been recognised in Featherstone v R [2008] NSWCCA 71 at [45]; McGrath v R [2010] NSWCCA 48 at [62]; and R v RWB [2010] NSWCCA 147 at [176] and accords with my own recollection of events. However, such rec…
MJL v R [2007] NSWCCA 261
Citation 10 (Para 49)

…Consistent with R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481, MJL v R [2007] NSWCCA 261, RWB v R; R v RWB [2010] NSWCCA 147; 202 A Crim R 209, the prisoner is to be sentenced with respect to the range of sentences or sentencing patterns which applied at the time of the offences.…
R v MJR [2002] NSWCCA 129
Citation 11 (Para 49)

…Consistent with R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481, MJL v R [2007] NSWCCA 261, RWB v R; R v RWB [2010] NSWCCA 147; 202 A Crim R 209, the prisoner is to be sentenced with respect to the range of sentences or sentencing patterns which applied at the time of the offences.…
R v Moon [2000] NSWCCA 534
Citation 12

…he approach to be adopted is the normal sentencing approach having regard to the statutory provision relevant to the particular time - see R v Moon [2000] NSWCCA 534; 117 A Crim R 497 at [70]-[71], R v MJR [2002] NSWCCA 129; 54 NSWCCA 368 at [107]. That approach allows for such assistance as may be obtained from the…

Legislation Cited

Crimes Act 1900 (ACT) 61D(1A), 61E(1A), 61E(2A), 61J(1)
5 mentions (from Para 4)
Crimes (Sentencing Procedure) Act 1999 (NSW) 21A, 3A, 44
4 mentions (from Para 40)
Probation and Parole Act 1983 (NSW)
1 mention (from Para 50)
Sentencing Act 1989 (NSW)
1 mention

Medium Neutral Citation:	R v RL [2013] NSWDC 337
Hearing dates:	8 March 2013
Decision date:	10 May 2013
Jurisdiction:	Criminal
Before:	Payne DCJ
Decision:	Total effective sentence of 7 years 6 months with a total effective non-parole period of 4 years 10 months comprised of the following: Count one: Sentenced to a fixed term of imprisonment of 1 year Count two: Sentenced to a fixed term of imprisonment of 1 year Count three: Sentenced to a fixed term of imprisonment of 1 year Count four: Sentenced to a fixed term of imprisonment of 2 years Count six: Sentenced to a fixed term of imprisonment of 2 years Count eight: Sentenced to a fixed term of imprisonment of 6 months Count nine: Sentenced to a term of imprisonment of 3 years 6 months with a non-parole period of 10 months
Catchwords:	CRIMINAL LAW – sentence – sexual assault – legislative provisions – relevant law and sentencing principles
Legislation Cited:	Crimes Act 1900 (NSW), ss 61D(1A), 61E(1A), 61E(2A), 61J(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44 Probation and Parole Act 1983 (NSW) Sentencing Act 1989 (NSW)
Cases Cited:	JRM v R [2012] NSWCCA 112 MH v R [2011] NSWCCA 230 MJL v R [2007] NSWCCA 261 PWB v R [2011] NSWCCA 84; 216 A Crim R 305 R v Lane [2011] NSWSC 289 R v McGrath [2010] NSWCCA 48; 199 A Crim R 527 R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481 RWB v R; R v RWB [2010] NSWCCA 147; 202 A Crim R 209
Category:	Sentence
Parties:	Regina (Crown) RL (Offender)
Representation:	Counsel: M King (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2011/00130859
Publication restriction:	Name of victim and offender anonymised