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R v RT (No 2)

R v RT (No 2)

Case [2024] NSWDC 533 18 July 2024

Historical Child Sex Offences

Community Correction Order

Constitutional Validity

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v RT (No 2) [2024] NSWDC 533
Hearing dates: 28 June 2024
Date of orders: 18 July 2024
Decision date: 18 July 2024
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Community Correction Order 3 years and offender is not to be treated as a Registrable Person under the Child Protection (Offenders Registration) Act 2000, at [210] to [220].

Catchwords:
CRIME — Historical child sex offences — Sexual intercourse with child >10 <16 — Offender was a child when he committed the offences but an adult at the time of sentencing — Extensive delay of almost 33 years — Offences committed against offender’s sister — Sentencing children who commit child sex offences — Non-custodial sentence imposed.

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Child Protection (Offenders Registration) Act 2000 (NSW)
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
BM v R [2019] NSWCCA 223
Brown v R [2023] NSWCCA 330
DPP (NSW) v TH [2023] NSWCCA 81
Featherstone v R [2008] NSWCCA 71
Kilic v The Queen [2016] HCA 48; 259 CLR 256
KT v R [2008] NSWCCA 51
MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93
Paul Campbell v R [2018] NSWCCA 87
R v AA [2017] NSWCCA 84
R v AB [2022] NSWCCA 3
R v Andrew Button (a pseudonym) [2021] NSWDC 829
R v Campbell (a pseudonym) [2017] NSWDC 359
R v Carey [2024] NSWCCA 90
R v Cattell [2019] NSWCCA 297
R v DB (Unreported, Campbelltown District Court, 10 November 2023)
R v DW (No 1) [2020] NSWDC 461
R v DW (No 2) [2020] NSWDC 462
R v Elliott and Blessington [2006] NSWCCA 305; 68 NSWLR 1
R v G [2008] UKHL 37; [2009] 1 AC 92.
R v Gavel [2014] NSWCCA 56
R v Lulham [2016] NSWCCA 287
R v PGW [2002] QCA 462;134 A Crim R 593
R v RT (No 1) [2024] NSWDC 116
R v SW NSWDC (unreported) 10 September 2018
R v Young (a pseudonym) [2021] NSWDC 702
RL v R [2015] NSWCCA 106
RP v R [2015] NSWCCA 215
Stuart v R [2012] NSWCCA 183
Young (a pseudonym) v R [2022] NSWCCA 111
Category: Sentence
Parties: Rex (Crown)
RT (Offender)
Representation:
Counsel:

E Winborne (Crown)
G D Wendler (Offender)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
John Weller & Associates (Offender)

File Number(s): 2023/00040675
Publication restriction: There is to be no publication of a name that identifies or is likely to lead to the identification of the complainant in accordance with section 578A of the Crimes Act 1900 and s 15A(1) of the Children (Criminal Proceedings) Act 1987.

JUDGMENT

RT appears for sentence with respect to one count of sexual intercourse with a person between the ages of 10 years…

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 RT (No 2)

Details

AGLC: R v RT (No 2) [2024] NSWDC 533
Case: [2024] NSWDC 533
Decision Date: 18 July 2024

CaseChat Overview and Summary

The case of R v RT (No 2) involved the defendant, RT, who faced charges relating to historical child sex offences. These offences involved sexual intercourse with his sister, who was over the age of ten but under sixteen at the time. RT was a child when he committed these offences but was an adult when he was sentenced, with a delay of almost 33 years between the commission of the offences and his sentencing. The case was heard in a relevant Australian court, which was required to determine several legal issues pertinent to the case.

The court was tasked with determining the appropriate sentence for RT, given the historical nature of the offences and the significant delay in prosecution. A key issue was the extent to which the delay affected the principles of sentencing, particularly considerations of general and specific deterrence, denunciation, and the protection of society. Another issue was the impact of RT's age at the time of the offences on his culpability and the appropriate sentence. The court also had to consider the relationship between RT and his sister and how this affected the nature and severity of the offences.

The court found that the offences were serious and had a significant impact on the victim. However, it also acknowledged the extensive delay in prosecution and RT's age at the time of the offences. In balancing these factors with the need for deterrence and denunciation, the court decided that a community correction order for three years was appropriate, with RT not being treated as a registrable person under the Child Protection (Offenders Registration) Act 2000. The court emphasised the importance of considering the circumstances of each case when sentencing for historical offences and the need to balance various sentencing principles.

Orders

Orders of the court

Community Correction Order 3 years and offender is not to be treated as a Registrable Person under the Child Protection (Offenders Registration) Act 2000, at [210] to [220].

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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Actions

Citations

R v RT (No 2) [2024] NSWDC 533

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Carey [2024] NSWCCA 90
Citation 1 (Para 84)

…n circumstances where the maximum penalty and principles of sentencing law have changed. The difficulties in this regard were recognised in R v Carey [2024] NSWCCA 90 at [46] to [53] in the judgment of Hamill J (who was in dissent only as to the exercise of discretion on a Crown appeal).…
R v Todd [2024] NZHC 897
Citation 2

…a sentence in the case of extended delay is because of the weight that has to be given to the applicant's rehabilitation in the meantime: R v Todd (1982) 2 NSWLR 517 at 519. That basis is largely absent here, at least until 2013.”…
R v RT [2024] NSWDC 116
Citation 3 (Para 35)

…ermined when the matter was still in the District Court sitting in Newcastle. The relevant detail is referred to in my earlier judgment R v RT (No 1) [2024] NSWDC 116.…
Brown v The King [2023] NSWCCA 330
Citation 4 (Para 74)

…Conversely, in Brown v R [2023] NSWCCA 330, reciprocal fellatio offences committed between a 54-year-old and an initially willing 14-year-old victim who had originally met online and subsequently physically met at a pre-arranged meeting at public toilets in a park, led to an assessment of the offending in that case…
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Citation 5 (Para 73)

…conduct in support of a submission that the offending fell in the mid-range of objective seriousness. The Crown made reference to DPP (NSW) v TH [2023] NSWCCA 81 where an offence involving fellatio committed on a 12-year-old stepson, which was part of ongoing abuse, had been assessed as being just under the mid-ra…
Young (a Pseudonym) v R [2022] NSWCCA 111
Citation 6 (Para 100)

…The Crown’s submissions make reference to Young (a pseudonym) v R [2022] NSWCCA 111 and R v DW (No 1) [2020] NSWDC 461 in this regard. While I will refer to the detail of those cases later in these remarks, I should observe immediately that the matter of Young (a pseudonym) did not result in a non-custodial sentence…
R v AB [2022] NSWCCA 3
Citation 7 (Para 192)

…Her Honour also referred to R v AB [2022] NSWCCA 3 which had resulted in a Conditional Release Order without proceeding to conviction.…
R v Andrew Button (a pseudonym) [2021] NSWDC 829
Citation 8 (Para 193)

…Her Honour made specific reference to R v DW (No 1) and also to R v Andrew Button (a pseudonym) [2021] NSWDC 829. In both cases, the outcome was a Community Correction Order. A similar result was obtained in R v DN [2019] NSWDC 536 to which Judge Baly SC also made reference.…
R v Young (a pseudonym) [2021] NSWDC 702
Citation 9 (Para 169)

…ing “some capacity to lead a normal community life but there is a regular cycle of self-destructing and self-sabotage.” ( R v Young (a pseudonym) [2021] NSWDC 702 at [29]).…
R v DW (No 2) [2020] NSWDC 462
Citation 10 (Para 217)

…I make reference to my reasoning in R v DW (No 2) [2020] NSWDC 462, which I do not repeat.…
R v DW (No 1) [2020] NSWDC 461
Citation 11 (Para 96)

…In Mr Wendler’s submission, the sentencing Remarks in R v DW (No 1) [2020] NSWDC 461 were described as “instructive”. In Mr Wendler’s submission, the offending conduct in DW concerned two victims, the victims were not siblings of the offender and the discount available was less favourable than to the present offend…
R v Cattell [2019] NSWCCA 297
Citation 12 (Para 99)

…f a lengthy delay between offending conduct and a matter coming before the court for sentence. In that particular matter, the decision of R v Cattell [2019] NSWCCA 297 was examined in detail (see [130] to [161]).…
BM v R [2019] NSWCCA 223
Citation 13 (Para 191)

…Judge Baly SC made reference to BM v R [2019] NSWCCA 223, where four separate offences under s 66A and s 61M(2) had resulted in a sentence of imprisonment, notwithstanding that the appellant had been 13 at the time of the offending.…
R v DN [2019] NSWDC 536
Citation 14 (Para 193)

…v Andrew Button (a pseudonym) [2021] NSWDC 829. In both cases, the outcome was a Community Correction Order. A similar result was obtained in R v DN [2019] NSWDC 536 to which Judge Baly SC also made reference.…
Paul Campbell v R [2018] NSWCCA 87
Citation 15 (Para 138)

…The child offender appealed to the Court of Criminal Appeal: Paul Campbell v R [2018] NSWCCA 87. The defect in the proceedings below with respect to the inclusion of a matter carrying a maximum penalty of life imprisonment on a Form 1 was identified by the Crown and conceded. Leave was given to include this as an a…
R v Campbell (a pseudonym) [2017] NSWDC 359
Citation 16 (Para 136)

…The matter was first dealt with in the District Court before his Honour Judge Berman SC: see R v Campbell (a pseudonym) [2017] NSWDC 359. Two of the offences of actual intercourse with a child under ten, carrying a maximum penalty of life imprisonment, were on the indictment which was presented, whilst a third char…
R v AA [2017] NSWCCA 84
Citation 17 (Para 188)

…Her Honour Judge Baly SC made reference to R v AA [2017] NSWCCA 84 in which Beech-Jones J, as his Honour then was, Leeming and R A Hulme JJ agreeing, said: “The age of a young offender who commits child sexual assault offences may bear upon an assessment of the objective seriousness of the conduct.”…
R v Lulham [2016] NSWCCA 287
Citation 18 (Para 82)

…The commission of an offence in a victim’s home as an aggravating factor is not restricted to offences committed by an intruder: see R v Lulham [2016] NSWCCA 287.…
R v Kilic [2016] HCA 48
Citation 19 (Para 46)

…to the specific charge alleged in any case, there remains to be considered a range of offending. As described by the High Court in Kilic v The Queen [2016] HCA 48; 259 CLR 256, the spectrum ranges from the least serious in the relevant category to the worst case, properly so-called.…
Galea v Galea [2015] NSWCCA 215
Citation 20 (Para 145)

…Reference had been made at first instance to RP v R [2015] NSWCCA 215, in which a careful analysis of the comparable cases referred to in the judgment demonstrated that serious sexual offending committed by children as young as the applicant did not necessarily result in full-time incarceration.…
RL v R [2015] NSWCCA 106
Citation 21 (Para 101)

…In RL v R [2015] NSWCCA 106, the offender had been aged between 14 and about 20 or 21 years of age when he committed a series of sexual offences against younger relatives. The offending had occurred between 1981 and 1987. No complaint had been made about any of the offending until about 2013. I propose to set out th…
R v Gavel [2014] NSWCCA 56
Citation 22 (Para 72)

…re) Act 1999 . The impact of the trauma of sexual abuse on children was emphasised. The Court was reminded that the oft-quoted passage from R v Gavel [2014] NSWCCA 56 at [110] which in turn quoted the recognition of the long-term and serious harm, which had been referred to by Baroness Hale of Richmond in R v G [20…
Stewart v R [2012] NSWCCA 183
Citation 23 (Para 79)

…ordingly the Crown does not rely upon the substantial emotional harm as a feature of aggravation. To do so would risk double counting: see Stuart v R [2012] NSWCCA 183.…
R v G [2008] UKHL 37
Citation 24 (Para 72)

…56 at [110] which in turn quoted the recognition of the long-term and serious harm, which had been referred to by Baroness Hale of Richmond in R v G [2008] UKHL 37; [2009] 1 AC 92.…
Featherstone v R [2008] NSWCCA 71
Citation 25 (Para 200)

…ed upon as context. It is important to recognise the limited relevance that those uncharged acts have to the sentencing exercise. In Featherstone v R [2008] NSWCCA 71, Bell J noted at [74] that:…
KT v R [2008] NSWCCA 51
Citation 26 (Para 177)

…, “that lost opportunity was an ameliorating factor on sentence.” Her Honour made reference to the observations of McClellan CJ at CL in KT v R [2008] NSWCCA 51 at [52] and also the observations of Hamill J in Paul Campbell (a pseudonym) to which I have already made reference in these Remarks.…
R v E [2006] NSWCCA 305
Citation 27 (Para 143)

…His Honour noted at [30] the judgment of Kirby J, who had dissented in the outcome in R v Elliott and Blessington [2006] NSWCCA 305; 68 NSWLR 1, and then said this:…
MS2 v The Queen [2005] NSWCCA 397
Citation 28 (Para 144)

…Hamill J also made reference to MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93, a decision of Adams J, which had identified two of the reasons that the youthfulness of an offender was considered to be a significant factor in sentencing. Adams J had identified the first significant point as substantial…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 29 (Para 89)

…operate to increase a sentence pursuant to the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146.…
R v PGW [2002] QCA 462
Citation 30 (Para 197)

…In R v PGW [2002] QCA 462;134 A Crim R 593, an appeal against severity where a sentencing judge had imposed a term of imprisonment which was wholly suspended and a conviction was recorded, de Jersey CJ said:…
[2009] 1 AC 92 [2009] 1 AC 92
Citation 31 (Para 72)

…ch in turn quoted the recognition of the long-term and serious harm, which had been referred to by Baroness Hale of Richmond in R v G [2008] UKHL 37; [2009] 1 AC 92.…

Legislation Cited

Child Protection (Offenders Registration) Act 2000 (NSW)
1 mention (from Para 216)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 45)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v RT (No 2) [2024] NSWDC 533
Hearing dates:	28 June 2024
Date of orders:	18 July 2024
Decision date:	18 July 2024
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Community Correction Order 3 years and offender is not to be treated as a Registrable Person under the Child Protection (Offenders Registration) Act 2000, at [210] to [220].
Catchwords:	CRIME — Historical child sex offences — Sexual intercourse with child >10 <16 — Offender was a child when he committed the offences but an adult at the time of sentencing — Extensive delay of almost 33 years — Offences committed against offender’s sister — Sentencing children who commit child sex offences — Non-custodial sentence imposed.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 BM v R [2019] NSWCCA 223 Brown v R [2023] NSWCCA 330 DPP (NSW) v TH [2023] NSWCCA 81 Featherstone v R [2008] NSWCCA 71 Kilic v The Queen [2016] HCA 48; 259 CLR 256 KT v R [2008] NSWCCA 51 MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93 Paul Campbell v R [2018] NSWCCA 87 R v AA [2017] NSWCCA 84 R v AB [2022] NSWCCA 3 R v Andrew Button (a pseudonym) [2021] NSWDC 829 R v Campbell (a pseudonym) [2017] NSWDC 359 R v Carey [2024] NSWCCA 90 R v Cattell [2019] NSWCCA 297 R v DB (Unreported, Campbelltown District Court, 10 November 2023) R v DW (No 1) [2020] NSWDC 461 R v DW (No 2) [2020] NSWDC 462 R v Elliott and Blessington [2006] NSWCCA 305; 68 NSWLR 1 R v G [2008] UKHL 37; [2009] 1 AC 92. R v Gavel [2014] NSWCCA 56 R v Lulham [2016] NSWCCA 287 R v PGW [2002] QCA 462;134 A Crim R 593 R v RT (No 1) [2024] NSWDC 116 R v SW NSWDC (unreported) 10 September 2018 R v Young (a pseudonym) [2021] NSWDC 702 RL v R [2015] NSWCCA 106 RP v R [2015] NSWCCA 215 Stuart v R [2012] NSWCCA 183 Young (a pseudonym) v R [2022] NSWCCA 111
Category:	Sentence
Parties:	Rex (Crown) RT (Offender)
Representation:	Counsel: E Winborne (Crown) G D Wendler (Offender) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) John Weller & Associates (Offender)
File Number(s):	2023/00040675
Publication restriction:	There is to be no publication of a name that identifies or is likely to lead to the identification of the complainant in accordance with section 578A of the Crimes Act 1900 and s 15A(1) of the Children (Criminal Proceedings) Act 1987.