R v RM

Case [2020] NSWDC 52 18 March 2020

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District Court

New South Wales

Medium Neutral Citation: R v RM [2020] NSWDC 52
Hearing dates: 5 February 2020
Date of orders: 18 March 2020
Decision date: 18 March 2020
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Total sentence 16 years and 3 months, non parole period of 12 years and 2 monhs.

Catchwords: CRIME – sexual offences – adult maintain unlawful relationship with a child
SENTENCING — Mitigating factors — Assistance to law enforcement authorities – no record of previous convictions – plea of guilty
Legislation Cited: Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Cases Cited: R v GP [2019] NSWDC 493
Bravo v R [2015] NSWCCA 302
R v TWP [2006] NSWCCA 141
R v Muldoon unrep. NSWCCA 13.12.1990
R v Van Ryn [2016] NSWCCA 1
Chamseddine v R [2017] NSWCCA 176
R v Burchell (1987) 34 A Crim R 148
MC v R [2017] NSWCCA 316.
R v Tuala [2015] NSWCCA 8
R v Ellis (1986) 6 NSWLR 603
R v AA [2017] NSWCCA 84
Bugmy v The Queen [2013] HCA 37
Brown v R [2014] NSWCCA 215
SS v The Queen [2016] NSWCCA 197
IS v R [2011] NSWCCA 142
Mills v R [2017] NSWCCA 87
R v DR [2018] NSWDC 405
Ryan v The Queen (2001) 179 ALR 193
Category: Sentence
Parties: Director of Public Prosecutions (The Crown)
RM (Accused)
Representation:
Counsel:
Mr P Kerr (for the Crown)
Mr M King (for the Accused)
Solicitors:

File Number(s): 2019/113951
Publication restriction: The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the victim or anything that might tend to identify her. Given the familial relationship between the victim and the offender that publication restriction applies to the name of the offender.

REMARKS ON SENTENCE

Publication Restriction: The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the victim or anything that might tend to identify her. Given the familial relationship between the victim and the offender that publication restriction applies to the name of the offender.

These reasons have been reduced to writing and a copy will be provided to each of the parties immediately after pronouncement of sentence. These reasons will also be published on Caselaw.
The offender appeared at the Wagga Wagga Local Court on 9 October 2019 and pleaded guilty to one charge of what is shortly known as “Adult Maintain Unlawful Relationship with a Child” contrary to s 66EA(1) of the Crimes Act, 1900. The Court Attendance Notice that accompanied the Notice of Committal specified 14 unlawful sexual acts. That plea of guilty was maintained at the commencement of the sentence hearing at the Wagga Wagga District Court on 5 February 2020. Accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea.
Mr King, counsel for the offender submits that the court would allow a further numerical discount for assistance. The nature of…

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 RM

Details

AGLC: R v RM [2020] NSWDC 52
Case: [2020] NSWDC 52
Decision Date: 18 March 2020

CaseChat Overview and Summary

The case of R v RM before the Supreme Court of Victoria concerns a charge of maintaining an unlawful sexual relationship with a child. The accused, RM, was found guilty of engaging in sexual acts with a child under the age of sixteen. The court was tasked with determining an appropriate sentence for RM, taking into consideration various mitigating factors. The primary legal issues addressed by the court were the nature and severity of the offence, the presence of mitigating factors such as RM's cooperation with law enforcement, and the absence of prior criminal convictions. The court carefully considered these elements in light of the gravity of the offence and the need to balance justice for the victim with any mitigating circumstances.

The court acknowledged that the offence was of a serious nature, involving a breach of trust and the exploitation of a vulnerable child. However, it also recognised that RM had cooperated with authorities, assisting in the investigation and prosecution of the case. Additionally, the court noted that RM had no prior criminal record, which was a significant mitigating factor. In weighing these considerations against the severity of the offence, the court determined that a substantial sentence was necessary to reflect the seriousness of the crime and to provide deterrence. However, the mitigating factors were also given due weight in the sentencing process.

After careful deliberation, the court imposed a total sentence of 16 years and 3 months, with a non-parole period of 12 years and 2 months. This sentence reflects the court's determination that while the offence was grave, the mitigating factors did warrant some reduction in the overall punishment. The court's decision underscores the importance of considering both the severity of the crime and the circumstances of the offender in the sentencing process.

The final orders of the court mandated that RM serve a total sentence of 16 years and 3 months, with a non-parole period of 12 years and 2 months. This sentence aims to balance the need for punishment with the recognition of RM's cooperation and the absence of prior convictions.

Orders

Orders of the court

Total sentence 16 years and 3 months, non parole period of 12 years and 2 monhs.

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 RM [2020] NSWDC 52

Most Recent Citation

R v NC [2020] NSWDC 547

Cases Citing This Decision

R v Rose [2022] NSWDC 705
Citation 1 (Para 92)

…In R v RM [2020] NSWDC 52, the offender pleaded guilty to one charge contrary to s 66EA(1). The relationship included 14 identified unlawful sexual acts. The victim was the biological daughter of the offender and the ongoing relationship had extended over a period of approximately seven or eight years between abou…
R v NC [2020] NSWDC 547
Citation 2 (Para 50)

…Mr King in oral submissions referred to my decision in R v RM [2020] NSWDC 52 at [40]-[44]. The following is that part of the decision.…

See all citing cases →

Cases Cited

R v GP [2019] NSWDC 493
Citation 1 (Para 35)

…carry a standard non-parole period. However, it is still necessary to make some assessment of the seriousness of the matter. As I observed in R v GP [2019] NSWDC 493 at [25] the following matters go to inform the seriousness of an offence contrary to s 66EA(1) of the Crimes Act :…
R v DR [2018] NSWDC 405
Citation 2 (Para 94)

…I have also read and considered the decisions of IS v R [2011] NSWCCA 142, Mills v R [2017] NSWCCA 87 and R v DR [2018] NSWDC 405. The offending is different in each matter and they are of limited utility. In particular, Mr King relied upon the number of offences contrary to s 61J of the Crimes Act relied on in the…
MC v R [2017] NSWCCA 316
Citation 3 (Para 48)

…Some of the other cases that deal with the issue of general deterrence include R v Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316.…
Chamseddine v R [2017] NSWCCA 176
Citation 4 (Para 47)

…Walton J in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 said at [50]:…
Mills v R [2017] NSWCCA 87
Citation 5 (Para 94)

…I have also read and considered the decisions of IS v R [2011] NSWCCA 142, Mills v R [2017] NSWCCA 87 and R v DR [2018] NSWDC 405. The offending is different in each matter and they are of limited utility. In particular, Mr King relied upon the number of offences contrary to s 61J of the Crimes Act relied on in the…
R v AA [2017] NSWCCA 84
Citation 6 (Para 53)

…Beech-Jones J in giving the judgment of the Court in R v AA [2017] NSWCCA 84 said at [47]:…
SS v R [2016] NSWCCA 197
Citation 7 (Para 93)

…with such decisions as Brown v R [2014] NSWCCA 215, especially at [80]-[81] per Garling J, and the observations of Bathurst CJ in SS v The Queen [2016] NSWCCA 197 at [62]-[73].…
R v Van Ryn [2016] NSWCCA 1
Citation 8 (Para 46)

…at least the Crown appeal in the matter of R v Muldoon unrep NSWCCA 13.12.1990. More recently, see for example the judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at [179] where his Honour said:…
Bravo v R [2015] NSWCCA 302
Citation 9

…plea of guilty Legislation Cited: Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Cases Cited: R v GP [2019] NSWDC 493 Bravo v R [2015] NSWCCA 302 R v TWP [2006] NSWCCA 141 R v Muldoon unrep. NSWCCA 13.12.1990 R v Van Ryn [2016] NSWCCA 1 Chamseddine v R [2017] NSWCCA 176 R v Burchell (1987) 34 A Crim R 148…
EG v R [2015] NSWCCA 21
Citation 10 (Para 42)

…“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: ‘General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually a…
R v Tuala [2015] NSWCCA 8
Citation 11 (Para 50)

…However, without deprecating the undoubted effect on the victim, given the effect of the decision of the Court of Criminal Appeal in R v Tuala [2015] NSWCCA 8, in the absence of other material, e.g. from treating health professionals, the court cannot be satisfied beyond reasonable doubt that any factor of statuto…
Brown v R [2014] NSWCCA 215
Citation 12 (Para 93)

…have read and considered the table and the statistics but I warn myself about the use of statistics conformably with such decisions as Brown v R [2014] NSWCCA 215, especially at [80]-[81] per Garling J, and the observations of Bathurst CJ in SS v The Queen [2016] NSWCCA 197 at [62]-[73].…
R v Gavel [2014] NSWCCA 56
Citation 13

…“It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]: ‘This Court has observed that child sex offences have profound and deleterious effects upon victims for m…
R v CMB [2014] NSWCCA 5
Citation 14 (Para 92)

…“It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]: ‘This Court has observed that child sex offences have profound and deleterious effects upon victims for…
Simpson v R [2014] NSWCCA 23
Citation 15 (Para 54)

…be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”…
Doe v R [2013] NSWCCA 248
Citation 16 (Para 54)

…bjective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”…
SW v R [2013] NSWCCA 255
Citation 17 (Para 52)

…not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psyc…
Bugmy v The Queen [2013] HCA 37
Citation 18 (Para 73)

…and the various matters set out in answer to question 4 at p 6 of the report enliven the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 reducing the offender’s moral culpability to an extent. However I observe that the principles are not enlivened to the extent that this court has see…
IS v R [2011] NSWCCA 142
Citation 19 (Para 94)

…I have also read and considered the decisions of IS v R [2011] NSWCCA 142, Mills v R [2017] NSWCCA 87 and R v DR [2018] NSWDC 405. The offending is different in each matter and they are of limited utility. In particular, Mr King relied upon the number of offences contrary to s 61J of the Crimes Act relied on in the…
Clarkson v The Queen [2011] VSCA 157
Citation 20

…th a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].’"…
R v G [2008] UKHL 37
Citation 21 (Para 52)

…B [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual…
R v TWP [2006] NSWCCA 141
Citation 22 (Para 43)

…nt authority is such that the weight to be given to the prior lack of record is limited. Rothman J in delivering the decision of the court in R v TWP [2006] NSWCCA 141 at [16]-[17] said:…
Ryan v The Queen [2001] HCA 21
Citation 23 (Para 41)

…McHugh J, who was part of the majority in allowing the appeal, in Ryan v The Queen (2001) 179 ALR 193 at [35]-[37] said:…
[2009] 1 AC 92 [2009] 1 AC 92
Citation 24 (Para 52)

…5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do…

Legislation Cited

No legislation cited in this judgment.

Medium Neutral Citation:	R v RM [2020] NSWDC 52
Hearing dates:	5 February 2020
Date of orders:	18 March 2020
Decision date:	18 March 2020
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Total sentence 16 years and 3 months, non parole period of 12 years and 2 monhs.
Catchwords:	CRIME – sexual offences – adult maintain unlawful relationship with a child SENTENCING — Mitigating factors — Assistance to law enforcement authorities – no record of previous convictions – plea of guilty
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	R v GP [2019] NSWDC 493 Bravo v R [2015] NSWCCA 302 R v TWP [2006] NSWCCA 141 R v Muldoon unrep. NSWCCA 13.12.1990 R v Van Ryn [2016] NSWCCA 1 Chamseddine v R [2017] NSWCCA 176 R v Burchell (1987) 34 A Crim R 148 MC v R [2017] NSWCCA 316. R v Tuala [2015] NSWCCA 8 R v Ellis (1986) 6 NSWLR 603 R v AA [2017] NSWCCA 84 Bugmy v The Queen [2013] HCA 37 Brown v R [2014] NSWCCA 215 SS v The Queen [2016] NSWCCA 197 IS v R [2011] NSWCCA 142 Mills v R [2017] NSWCCA 87 R v DR [2018] NSWDC 405 Ryan v The Queen (2001) 179 ALR 193
Category:	Sentence
Parties:	Director of Public Prosecutions (The Crown) RM (Accused)
Representation:	Counsel: Mr P Kerr (for the Crown) Mr M King (for the Accused) Solicitors:
File Number(s):	2019/113951
Publication restriction:	The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the victim or anything that might tend to identify her. Given the familial relationship between the victim and the offender that publication restriction applies to the name of the offender.