R v RM (No. 6)

Case [2023] NSWDC 305


District Court


New South Wales

Medium Neutral Citation: R v RM (No. 6) [2023] NSWDC 305
Hearing dates: 11 August 2023
Date of orders: 11 August 2023
Decision date: 11 August 2023
Jurisdiction:Criminal
Before: Abadee DCJ
Decision:

See paragraph 108

Catchwords:

CRIMINAL LAW – sentencing – child sexual offences – father commits offences of indecent assault, sexual intercourse with child, sexual touching and sexual acts towards his daughter – interrelationship of aggravating factors of offending involving an abuse of a position of trust or authority and the vulnerability of a victim where for some counts (aggravated under age sexual intercourse), the circumstance of offending occurring whilst the victim was under the person’s authority was an element of the offence – relevance of evidence at trial of the offender committing an uncharged act against a third party to questions of good character and rehabilitation prospects

Legislation Cited:

Crime (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A

Crimes Act 1900 (NSW) ss 66C, 61J, 61KE, 61KC, 61M

Cases Cited:

Bhatia v R [2023] NSWCCA 12

Cheungv The Queen (2001) 209 CLR 1

Culbert v R [2021] NSWCCA 38

DH v R [2022] NSWCCA 200

DPP (NSW) v Presnell [2022] NSWCCA 146

GL v R [2022] NSWCCA 202

Muldrock v The Queen (2011) 244 CLR 120

PC v R [2022] NSWCCA 107

RvAJP (2004) 150 A Crim R 575

R v Nelson [2016] NSWCCA 130

R vOlbrich (1999) 199 CLR 270

R v PC [2022] NSWCCA 59

RH v R [2019] NSWCCA 64

Savvasv The Queen (1995) 183 CLR 1

Smith v R [2022] NSWCCA 267

Stevenson v R [2022] NSWCCA 133

Texts Cited:

Nil

Category:Sentence
Parties: Office of the Director of Public Prosecutions (ODPP)
RM (offender)
Representation:

Counsel:
Mr C Reynolds for the ODPP
Ms K Hogan for the offender

Solicitors:
ODPP
AJA Associates for the offender
File Number(s): 2020/00213495
2020/00251096
Publication restriction: Non-publication order regarding the identity of the offender and the victim

ex tempore sentencing remarks

  1. On 27 March 2023, following a trial presided over by myself in Parramatta, a jury found the offender guilty of a series of sexual offences committed against his daughter, who I will refer to as the victim or, where necessary, as KM. The offences, the maximum penalties and applicable standard non-parole periods are as follows:

Count on indictment

Description of offence

Maximum penalty

SNPP

1

Between 1 June 2011 and 31 December 2011 at Glendenning in New South Wales, assaulted KM, a person under the age of 16 years (namely 9 years) and at the time of the assault, committed an act of indecency towards her, contrary to s 61M(2) of the Crimes Act 1900 (NSW)

10 years’ imprisonment

8 years

Imprisonment

2

Between 17 January 2012 and 31 March 2012, at Glendenning in the State of New South Wales, assaulted KM, a person under the age of 16 years (namely 10 years) and at the time of the assault, committed an act of…

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AGLC
R v RM (No. 6) [2023] NSWDC 305
Case
[2023] NSWDC 305
Decision Date

CaseChat Overview and Summary

The case of R v RM (No. 6) involved the appellant, RM, who was convicted of multiple offences against his daughter, including indecent assault, sexual intercourse under age, sexual touching, and sexual acts. The High Court of Australia was called upon to review the sentencing decisions made in the lower courts. The key issues before the Court were the interrelationship of the aggravating factors of the offences, particularly the abuse of a position of trust or authority and the vulnerability of the victim. Furthermore, the Court had to consider the relevance of evidence at trial of the offender committing an uncharged act against a third party to questions of good character and rehabilitation prospects.

The Court examined the principles of sentencing in child sexual offences and the appropriate weight to be given to various aggravating factors. It was determined that while the abuse of a position of trust or authority and the vulnerability of the victim are both significant factors, they may overlap in certain circumstances. The Court noted that for some counts of aggravated under age sexual intercourse, the circumstance of offending occurring while the victim was under the person's authority was an element of the offence. Consequently, the Court had to balance these factors to ensure a fair and just sentence. Additionally, the Court considered the relevance of evidence of an uncharged act against a third party, concluding that such evidence could be pertinent in assessing the offender's good character and rehabilitation prospects.

In light of the Court's analysis, it was determined that the sentence imposed by the lower court was manifestly inadequate. The Court found that the sentence failed to adequately reflect the gravity of the offences and the impact on the victim. As a result, the Court allowed the appeal, set aside the sentence, and remitted the matter to the lower court for re-sentencing. The Court provided detailed guidance on the appropriate considerations for the lower court to take into account in imposing a new sentence, ensuring that the sentence imposed would adequately reflect the seriousness of the offences committed by the appellant.

Orders

Orders of the court

See paragraph 108

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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