R v Sales - [2019] NSWDC 629

District Court

New South Wales

Medium Neutral Citation: R v Sales [2019] NSWDC 629
Hearing dates: 27 August 2019; 30 August 2019
Decision date: 30 August 2019
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Total sentence 1 year 11 months; non parole period 6 months

Catchwords: CRIME – Sentence - sexual assault – commit act of indecency -person under 16 years – family member – opportunistic – criminal history but no prior offences of this type – mental health and intellectual issues – disadvantaged upbringing – ADHD – schizophrenia – drug and alcohol abuse – difficulty with maintaining medication regime – head injuries due to accident and attack – paranoia – no evidence of serious sexual deviance
Legislation Cited: Crimes Act 1900; s 61J(1); s 61M(2)
Crimes (Sentencing Procedure) Act 1999; s 9; s 21A
s 21A(2); s 25AA(3); s 54A(2); Section 54 B(2); s 3A
Cases Cited: Bugmy v R [2013] HCA 37
De La Rosa v R [2010] NSWCCA 194
EJDG v R [2012] NSWCCA 251
Ivimey v R [2008] NSWCCA 25
Kennedy v R [2010] NSWCCA 260
Kentwell v R (No 2) [2015] NSWCCA 96
Mill v R [1988] 166 CLR 59
Millwood v R [2012] NSWCCA 2
Muldrock v R [2012] NSWCCA 108
R v Engert (1995) 84 Crim R 67
R v Fernando [1992] 72 A Crim R 58
R v Henry (1998) 46 NSWLR 346
R v Todd [1982] 2 NSWLR 517
Category: Sentence
Parties: DPP (Regina)
Andrew Sales (Offender)
Representation: Counsel:
Ms S Anderson for the offender
Solicitors:
Mr L Wiggins for the Crown

File Number(s): 2016/00105997
Publication restriction: Statutory non publication order of the complainant’s name

Judgment

Andrew Sales appears in this Court for sentence in relation to an offence committed on 21 March 2016 contrary to s 61M(2) Crimes Act1900. The offence has a maximum penalty of ten years imprisonment and a standard non-parole period of eight years imprisonment. The offence was one of assaulting a person who I will refer to hereinafter as ‘the complainant’, then being under the age of 16 years, namely, 15 years and at the time of such assault committing an act of indecency upon the complainant or victim. The prisoner was charged in relation to the current matter on 7 April 2016 and, as I understand it, has spent no time in custody. He was subject at the time to a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999, hereinafter to be referred as “the Act”, that section of course, now repealed in the form it was when that order was made in 2014.
Mr Sales was born, contrary to the initial information in the Crown sentence summary, in 1983. I just interpose apropos of nothing that I was informed initially that in the sentence summary that his birth date was in 1964, the consequence of which some criminal history of a totally different human being born in 1964 was included within the bundle which is not relevant to this prisoner.

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 Sales

Details

AGLC: R v Sales [2019] NSWDC 629
Case: [2019] NSWDC 629
Decision Date: 30 August 2019

CaseChat Overview and Summary

In the case of R v Sales, the defendant was convicted of committing an act of indecency on a family member who was under the age of 16. The defendant's criminal history included various offences, but there were no prior offences of a sexual nature. The defendant also had a range of mental health and intellectual issues, as well as a disadvantaged upbringing. These factors, combined with a history of drug and alcohol abuse, difficulty maintaining a medication regime, head injuries due to an accident and an attack, paranoia, and no evidence of serious sexual deviance, formed the basis of the appeal against sentence.

The legal issues before the court were whether the sentence imposed was manifestly inadequate, and if so, what the appropriate sentence should be. The court had to consider the nature and circumstances of the offence, the defendant's criminal history, mental health and intellectual issues, disadvantaged upbringing, and other relevant factors in determining the appropriate sentence. The court also had to consider the defendant's prospects of rehabilitation and the need for the sentence to reflect community standards of justice.

In delivering the judgment, the court acknowledged the seriousness of the offence and the vulnerability of the victim. However, the court also recognised the defendant's disadvantaged background and mental health issues, which were mitigating factors. The court found that the sentence imposed was manifestly inadequate and substituted a total sentence of 1 year and 11 months, with a non-parole period of 6 months. The court emphasised the importance of the sentence reflecting community standards of justice and providing an opportunity for the defendant's rehabilitation.

Orders

Orders of the court

Total sentence 1 year 11 months; non parole period 6 months

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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Medium Neutral Citation:	R v Sales [2019] NSWDC 629
Hearing dates:	27 August 2019; 30 August 2019
Decision date:	30 August 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Total sentence 1 year 11 months; non parole period 6 months
Catchwords:	CRIME – Sentence - sexual assault – commit act of indecency -person under 16 years – family member – opportunistic – criminal history but no prior offences of this type – mental health and intellectual issues – disadvantaged upbringing – ADHD – schizophrenia – drug and alcohol abuse – difficulty with maintaining medication regime – head injuries due to accident and attack – paranoia – no evidence of serious sexual deviance
Legislation Cited:	Crimes Act 1900; s 61J(1); s 61M(2) Crimes (Sentencing Procedure) Act 1999; s 9; s 21A s 21A(2); s 25AA(3); s 54A(2); Section 54 B(2); s 3A
Cases Cited:	Bugmy v R [2013] HCA 37 De La Rosa v R [2010] NSWCCA 194 EJDG v R [2012] NSWCCA 251 Ivimey v R [2008] NSWCCA 25 Kennedy v R [2010] NSWCCA 260 Kentwell v R (No 2) [2015] NSWCCA 96 Mill v R [1988] 166 CLR 59 Millwood v R [2012] NSWCCA 2 Muldrock v R [2012] NSWCCA 108 R v Engert (1995) 84 Crim R 67 R v Fernando [1992] 72 A Crim R 58 R v Henry (1998) 46 NSWLR 346 R v Todd [1982] 2 NSWLR 517
Category:	Sentence
Parties:	DPP (Regina) Andrew Sales (Offender)
Representation:	Counsel: Ms S Anderson for the offender Solicitors: Mr L Wiggins for the Crown
File Number(s):	2016/00105997
Publication restriction:	Statutory non publication order of the complainant’s name