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R v RM (No. 6)

R v RM (No. 6)

Case [2023] NSWDC 305 11 August 2023

Criminal Liability

Sentencing

Mens Rea & Intention

Vulnerability of a Victim

Abuse of Trust or Authority

Criminal Law

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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

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…

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 (No. 6)

Details

AGLC: R v RM (No. 6) [2023] NSWDC 305
Case: [2023] NSWDC 305
Decision Date: 11 August 2023

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v RM (No. 6) [2023] NSWDC 305

Most Recent Citation

R v RM (No.7) [2024] NSWDC 577

Cases citing this decision · 1 of 1 shown

R v RM (No.7)
[2024] NSWDC 577 Para 1

…on Caselaw [1] . I will refer to these as ‘My Earlier Remarks’. These sentencing remarks should be read with My Earlier Remarks. 1. R v RM (No.6) [2023] NSWDC 305…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

Bhatia v R
[2023] NSWCCA 12 Para 77

…offender to commit the offences so as to exclude those matters as mitigating circumstances conformably with s 21A(5A) of the CSP Act (see Bhatia v R [2023] NSWCCA 12). By reason of his relationship to the victim, the offender had essentially unfettered access to her.…
DH v R
[2022] NSWCCA 200 Para 35

…articular reference to where it falls in relation to a mid-range notwithstanding that most of the offences carry a standard non-parole period: DH v R [2022] NSWCCA 200. Nevertheless, both parties adopted that nomenclature when submitting where the offences fell.…
GL v R
[2022] NSWCCA 202 Para 59

…2)(g) to be engaged, the harm to the victim has to be extraordinary or beyond that which would ordinarily result from such serious offending ( GL v R [2022] NSWCCA 202 at [64]). The Crown did not suggest, and I do not find, that it did.…
Director of Public Prosecutions (NSW) v Presnell
[2022] NSWCCA 146 Para 53

…fence for count 11, is a relatively recent offence and was authoritatively construed recently by the Court of Criminal Appeal in DPP (NSW) v Presnell [2022] NSWCCA 146. I relied upon this authority when directing the jury on some of the elements, especially whether a sexual act was ‘towards’ the victim. In that case…
Stevenson v R
[2022] NSWCCA 133 Para 36

…icular seriousness. This is especially so where, as here, the offence involves skin-on-skin contact with the genital region of a child: Stevenson v R [2022] NSWCCA 133 (‘Stevenson’) at [113].…
PC v R
[2022] NSWCCA 107 Para 66

…ascribing materially more weight to this additional aggravating factor when assessing counts 3-5 (incl) in order to avoid double counting ( PC v R [2022] NSWCCA 107 at [73]-[77]). In my opinion, in circumstances where the same facts relied upon by the Crown to prove the element of the offence for counts 5-7 are rel…
R v PC
[2022] NSWCCA 59 Para 56

…In R v PC [2022] NSWCCA 59, Fagan J (Davies J and Bellew J agreeing) at [44] observed that it can readily be inferred (beyond reasonable doubt) that a victim of child sexual abuse perpetrated by a family member will carry psychological scars of the experience well into adulthood. His Honour previously noted that ha…
Culbert v R
[2021] NSWCCA 38 Para 57

…Before that decision, in Culbert v R [2021] NSWCCA 38 Adamson J (with whom R A Hulme J agreed) wrote at [115]:…
RH v R
[2019] NSWCCA 64 Para 68

…In RH v R [2019] NSWCCA 64, Schmidt J (Hoeben CJ at CL and Adamson J - as her Honour then was - agreeing) at [48]-[49] found that serial sexual offences committed by a mother against her daughter engaged the aggravating circumstance of the victim’s being vulnerable and, further, treated that circumstance as aggrava…
R v Nelson
[2016] NSWCCA 130 Para 44

…nifested, for example, by physical resistance or words to the offender. This does not assist the offender since, as Basten JA explained In R v Nelson [2016] NSWCCA 130, at [16]-[27], the rationale for the lack of consent not being an element of the offences under ss 66C(2) and 66C(4) is that:…
Muldrock v The Queen
[2011] HCA 39

…en (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 R v AJP (2004) 150 A Crim R 575 R v Nelson [2016] NSWCCA 130 R v Olbrich (1999) 199 CLR 270 R v PC [2022] NSWCCA 59 RH v R […
Cheung v The Queen
[2001] HCA 67 Para 2

…a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict ”. In Cheung v The Queen (2001) 209 CLR 1 the High Court (in the joint judgment) summarised the law at [11]-[14]. I have had regard to those principles in finding the following facts. In particular…
R v Olbrich
[1999] HCA 54 Para 3

…e doubt. Conversely, where the offender relies upon disputed facts favourable to him, he must prove them on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.…
Savvas v R
[1995] HCA 29 Para 2

…In relation to the approach of a sentencing judge to fact-finding after a jury has rendered a guilty verdict, in Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “ a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verd…

Legislation cited in this decision · 2

Crime (Sentencing Procedure) Act 1999 (NSW)
21A, 3A, 5, 61J, 61KC, 61KE, 61M 8 mentions (from Para 54)
Crimes Act 1900 (ACT)
1 mention (from Para 36)

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