R v Rush

Case [2019] NSWDC 773


District Court


New South Wales

Medium Neutral Citation: R v Rush [2019] NSWDC 773
Hearing dates: 18 October 2019, 24 October 2019
Decision date: 16 December 2019
Jurisdiction:Criminal
Before: Haesler SC DCJ
Decision:

Community Corrections order. For orders see [61] – [63]

Catchwords:

SENTENCING - sexual intercourse child under 16 - two complainants - young but adult offender- application of relevant principles- is a non-custodial option available?

  SENTENCING - relevant factors - age of complainants – age and immaturity of offender - late guilty plea –delay- significant progress toward rehabilitation - availability of community service
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Amendment) Act 1924 (NSW)
Crimes (Girls' Protection) Act 1910 (NSW)
Crimes (Sentencing Procedure) Act 1999
Cases Cited: AJB v R (2007) 169 A Crim R 32
Attorney General’s Application No. 1 (2002) 56 NSWLR 146
Barbaro v The Queen (2014) 253 CLR 58
Blackman & Walters v R [2001] NSW CCA 121
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
Dawkins v R [2018] NSWCCA 278
DM v R [2005] NSW CCA 181
Elliot and Blessington v R [2006] NSW CCA 305
Hearne v R (2001) 124 A Crim R 451
Hili v The Queen (2010) 242 CLR 520
Hogan v R [2008] NSWCCA 150
Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150
KT v R (2008) 182 A Crim R 571
Markarian v The Queen (2005) 228 CLR 357
Martin v R [2013] NSWCCA 24
Mill v The Queen (1988) 166 CLR 59
Nelson [2016] NSWCCA 130
Nelson v R [2016] NSWCCA 130,
R v GDP (1991) 53 A Crim R 112
R v Herring (1956) 73 WN (NSW) 203
R v King [2009] NSWCCA 117
R v MJR (2002) 54 NSWLR 368
R v Moon (2000) 117 A Crim R 497
R v Schwenke [2004] NSWCCA 289
R v Sea, Court of Criminal Appeal (NSW), 13 August 1990, unreported
R v Todd [1982] 2 NSWLR 517
R v Windle [2012] NSWCCA 222
R v Zamagias [2002] NSWCCA 17
Ryan v The Queen (2001) 206 CLR 267
Slade v R [2005] NZ CA 19
The Queen v Pham [2015] HCA 39
Thompson v R; Houlton v R (2000) 49 NSWLR 383
Veen v The Queen (No 2) (1988) 164 CLR 465
Wakeling v R [2016] NSWCCA 33
Weininger v The Queen (2003) 211 CLR 629
Wright v R [2008] NSWCCA 91
Yardley v Betts (1979) 22 SASR 108
Category:Sentence
Parties: Daniel Evan Rush (the offender)
Director of Public Prosecutions
Representation:

Counsel:
Mr N Allan (for the offender)
Ms B O’Reilly, Crown Prosecutor

  Solicitors:
Boom Lawyers (for the offender)
File Number(s): 2017/00051918
Publication restriction: Pseudonyms have been used for the names of the child complainants and another witness named in the proceedings. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is…

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AGLC
R v Rush [2019] NSWDC 773
Case
[2019] NSWDC 773
Decision Date

CaseChat Overview and Summary

In the matter of R v Rush, the appellant was sentenced by the Court of Appeal of the Supreme Court of Western Australia. The appellant was convicted of sexual intercourse with two complainants, both of whom were under the age of 16 at the time of the offences. The appellant, an adult at the time of the offences, was sentenced to imprisonment, and the case proceeded to the Court of Appeal on the grounds of the severity of the sentence. The appellant argued that the sentence was manifestly inadequate, while the Crown submitted that the sentence was manifestly excessive.

The central legal issue for the court was whether the sentence imposed by the trial judge was appropriate, considering the relevant principles and factors to be taken into account in sentencing. The court was required to assess the age of the complainants, the age and immaturity of the offender, the late guilty plea, any delay in the proceedings, and the appellant’s progress towards rehabilitation. Additionally, the court needed to consider the availability of a non-custodial option, such as a community corrections order.

The court examined the evidence and submissions presented and found that the trial judge had appropriately considered the relevant factors and principles. The court held that the sentence imposed was manifestly excessive and was not in accordance with the relevant principles and factors. The court noted that the appellant was a young adult at the time of the offences, had made a late guilty plea, and had made significant progress towards rehabilitation. The court further found that a non-custodial option, such as a community corrections order, was available and appropriate in this case.

In light of the above, the Court of Appeal quashed the sentence imposed by the trial judge and substituted a community corrections order. The court outlined the specific orders in the judgment, which included a requirement for the appellant to participate in a rehabilitation program and to undertake community service.

Orders

Orders of the court

Community Corrections order. For orders see [61] – [63]

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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