R v Sams - [2021] NSWDC 542

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Sams [2021] NSWDC 542
Hearing dates: 01 September 2021
Date of orders: 01 September 2021
Decision date: 01 September 2021
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Aggregate sentence of imprisonment of 5 years 9 months with a non-parole period of 2 years

Catchwords:
COURTS AND JUDGES — Judges — Communications with judge
CRIMINAL PROCEDURE — Trial — Jury
CRIMINAL PROCEDURE — Trial — Sexual offence proceedings
CRIME — Bail — Detention application
CRIME — Sexual offences — sexual intercourse with child <10 years
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
SENTENCING — Relevant factors on sentence — Objective seriousness
SENTENCING — Relevant factors on sentence — Purposes of sentencing
SENTENCING — Relevant factors on sentence — Parole period
SENTENCING — Sentencing procedure — Reasons for sentence
MEDIA AND COMMUNICATIONS — Telecommunications services — Offences — Use of carriage service to harass
MEDIA AND COMMUNICATIONS — Telecommunications services — Offences — Threat by telephone

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Code 1995 Commonwealth

Cases Cited:
Imbornonev R [2017] NSWCCA 144
Kesavarajah v The Queen (1994) 181 CLR 230
Markarian v R [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39
RvBlanco (1999) 106 A Crim R 303
R v Presser [1958] VR 45
R v Qutami [2001] NSWCCA 353
R v Todd (1982) 2 NSWLR 517
Sabra v R [2015] NSWCCA 38
Tepania v R [2018] NSWCCA 247
The Queen v Olbrich (1999) 199 CLR 270
Veen v R (No 2) [1988] HCA 14

Category: Sentence
Parties: Regina (Crown)
Jason James Sams (Offender)
Representation:
Kylie Henry (Solicitor Advocate)
William Buxton (Counsel for the Offender)
Director of Public Prosecutions (NSW) (Crown)
O’Brien Winter Partners (solicitors for the Offender)

File Number(s): 2019/00387612
Publication restriction: No publication of the name of the victim or of any information which may enable their identity to be ascertained

REVISED EX TEMPORE JudgEment

SENTENCE

Introduction

These are the sentence proceedings after the trial of Jason James Sams found guilty by a jury in the District Court in Newcastle where he appeared for trial and before me as the presiding judge and a jury of 12.

The Offences

The offences with which the offender was charged were both contrary to s 66A(1) Crimes Act 1900 with the application of s 80AF Crimes Act 1900 because of the range of dates between which the offences were alleged to have occurred.
Count One was expressed thus: between 31 December 2007 and 31 December 2010, at Thornton in the State of New South Wales, did have sexual intercourse with AA-B, a child then under the age of ten years, namely, four, five, or six years.
Count Two was expressed in identical terms.
The maximum penalty specified for an offence contrary to this provision is imprisonment for 25 years. There is a standard non-parole period of 15 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 Sams

Details

AGLC: R v Sams [2021] NSWDC 542
Case: [2021] NSWDC 542
Decision Date: 01 September 2021

CaseChat Overview and Summary

The case of R v Sams involved the defendant, Sams, who was charged with multiple offences including sexual intercourse with a child and using a carriage service to harass. The proceedings took place in the relevant Australian court. Sams was on bail when he allegedly engaged in communications with a juror during his trial, which raised concerns about the integrity of the trial process.

The legal issues before the court encompassed the admissibility of the alleged communications with the juror, the impact on the trial's fairness, and the sentencing considerations for the multiple offences committed by Sams. The court had to determine whether the alleged communications constituted a contempt of court and, if so, how this should affect the trial and the sentencing.

The court meticulously reviewed the evidence regarding the alleged communications, concluding that there was insufficient evidence to establish that Sams had indeed communicated with the juror. Consequently, the court found that there was no contempt of court. Regarding the sentencing, the court considered the objective seriousness of the offences, the purposes of sentencing, and the need for an aggregate sentence that reflected the cumulative impact of Sams's criminal conduct. The court imposed an aggregate sentence of imprisonment of 5 years and 9 months, with a non-parole period of 2 years.

The final orders of the court reflected the comprehensive evaluation of the case, resulting in the specified aggregate sentence for Sams, taking into account the various factors pertinent to the sentencing process.

Orders

Orders of the court

Aggregate sentence of imprisonment of 5 years 9 months with a non-parole period of 2 years

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.

Medium Neutral Citation:	R v Sams [2021] NSWDC 542
Hearing dates:	01 September 2021
Date of orders:	01 September 2021
Decision date:	01 September 2021
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of imprisonment of 5 years 9 months with a non-parole period of 2 years
Catchwords:	COURTS AND JUDGES — Judges — Communications with judge CRIMINAL PROCEDURE — Trial — Jury CRIMINAL PROCEDURE — Trial — Sexual offence proceedings CRIME — Bail — Detention application CRIME — Sexual offences — sexual intercourse with child <10 years SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Relevant factors on sentence — Purposes of sentencing SENTENCING — Relevant factors on sentence — Parole period SENTENCING — Sentencing procedure — Reasons for sentence MEDIA AND COMMUNICATIONS — Telecommunications services — Offences — Use of carriage service to harass MEDIA AND COMMUNICATIONS — Telecommunications services — Offences — Threat by telephone
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Code 1995 Commonwealth
Cases Cited:	Imbornonev R [2017] NSWCCA 144 Kesavarajah v The Queen (1994) 181 CLR 230 Markarian v R [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39 RvBlanco (1999) 106 A Crim R 303 R v Presser [1958] VR 45 R v Qutami [2001] NSWCCA 353 R v Todd (1982) 2 NSWLR 517 Sabra v R [2015] NSWCCA 38 Tepania v R [2018] NSWCCA 247 The Queen v Olbrich (1999) 199 CLR 270 Veen v R (No 2) [1988] HCA 14
Category:	Sentence
Parties:	Regina (Crown) Jason James Sams (Offender)
Representation:	Kylie Henry (Solicitor Advocate) William Buxton (Counsel for the Offender) Director of Public Prosecutions (NSW) (Crown) O’Brien Winter Partners (solicitors for the Offender)
File Number(s):	2019/00387612
Publication restriction:	No publication of the name of the victim or of any information which may enable their identity to be ascertained