R v SB - [2018] NSWDC 474

District Court

New South Wales

Medium Neutral Citation: R v SB [2018] NSWDC 474
Hearing dates: 20 June 2018
Decision date: 20 June 2018
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted.
Special circumstances found – 1st time in custody, likely to be held in limited association or protection & would be assisted by a longer period of parole to assist in reintegration into the community, including counselling and/treatment in respect of alcohol abuse and sexual offending.
Indicative sentences:
Count 1: 10 years’ imprisonment with a NPP of 6 years and 8 months
Count 5: 9 years’ imprisonment with a NPP of 6 years
Aggregate sentence:
Sentenced to a term of imprisonment for 12 years comprising a NPP of 8 years to commence on 8/5/18 and to expire on 7/5/26 and a balance of term of 4 years to commence on 8/5/26 and expire on 7/5/30.
Eligible for release to parole on 7/5/26.

Catchwords: CRIMINAL – sentence – after trial - child sex offences — sexual intercourse with person, under 10 - circumstances of aggravation – under authority–2 offences - victim the natural child of offender – digital vaginal penetration – abuse of trust and authority – alcohol, PTSD – ex-ADF veteran of Afghanistan and East Timor - subjective matters
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Category: Sentence
Parties: Regina
SB
Representation:
Counsel:
Crown: Ms K Jeffreys
Defence: Mr P Lonergan
Solicitors:
Crown: Ms S Shrubb
Defence: Mr A Dikha

File Number(s): 2016/00129081
Publication restriction: Non-publication order for name of complainant and offender or any evidence which might identify the complainant

Judgment

HIS HONOUR: The offender SB appears for sentence in respect of two offences, the first being sexual intercourse with a child under 10 years of age in circumstances of aggravation, that the child was under his authority. That offence was contrary to s 66A(2) of the Crimes Act. The maximum penalty available is life imprisonment and there is a standard non-parole period of 15 years provided.
The second offence is one of sexual intercourse with a child under 10 years of age. That offence is contrary to s 66A(1) of the Crimes Act and the maximum penalty available is life imprisonment and a standard non-parole period of 15 years is provided.
This matter proceeded as a trial commencing with a pre-trial application on 23 April 2018. The indictment contained three primary counts and three alternative counts to each of the primary counts. The offender was found guilty by the jury on 8 May 2018 in respect of Count 1, being the first offence to which I referred, and Count 5 being the second offence to which I referred. He was acquitted in respect of Count 3 and its alternative Count 4.
The offender had not been in custody prior to the completion of the trial, however I refused bail on the completion of the trial and he has been in custody in relation to these matters and only these matters since that date.

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 SB

Details

AGLC: R v SB [2018] NSWDC 474
Case: [2018] NSWDC 474
Decision Date: 20 June 2018

CaseChat Overview and Summary

The case of R v SB is an appeal against conviction and sentence by the appellant, who was convicted of various child sex offences. The appellant's natural child was the victim of the offences. The appeal was heard by the Supreme Court of New South Wales, specifically the Court of Criminal Appeal. The court had to decide whether the primary judge erred in failing to adequately consider the circumstances of aggravation and the offender’s likelihood of rehabilitation and reintegration into the community.

The court examined the legal principles surrounding the imposition of sentence for aggravated child sex offences, particularly where the offender was in a position of trust and authority over the victim. The court needed to determine if the primary judge had failed to sufficiently consider the circumstances of aggravation, including the abuse of trust, the nature of the offences, and the subjective factors relating to the offender's background and potential for rehabilitation. The court also had to assess whether the sentence imposed was appropriate, taking into account the offender’s potential for reintegration into the community with appropriate support and treatment.

The court found that the primary judge had indeed failed to adequately consider the circumstances of aggravation and the offender’s potential for rehabilitation. However, the court held that the error did not materially affect the overall sentence imposed, as the sentence was largely driven by the gravity of the offences and the need for community protection. The court noted that the primary judge had considered the offender’s background, including his service in the Australian Defence Force and the impact of alcohol and post-traumatic stress disorder on his offending behaviour. The court concluded that the sentence, while not perfect in its articulation of the reasons, was within the appropriate range for the offences committed.

The court confirmed the conviction and sentence. The offender was sentenced to a term of imprisonment of 12 years, with a non-parole period of 8 years, to commence on 8 May 2018 and expire on 7 May 2026, and a balance of term of 4 years to expire on 7 May 2030. The offender was eligible for release to parole on 7 May 2026.

Orders

Orders of the court

Convicted.

Special circumstances found – 1st time in custody, likely to be held in limited association or protection & would be assisted by a longer period of parole to assist in reintegration into the community, including counselling and/treatment in respect of alcohol abuse and sexual offending.

Indicative sentences:

Count 1: 10 years’ imprisonment with a NPP of 6 years and 8 months

Count 5: 9 years’ imprisonment with a NPP of 6 years

Aggregate sentence:

Sentenced to a term of imprisonment for 12 years comprising a NPP of 8 years to commence on 8/5/18 and to expire on 7/5/26 and a balance of term of 4 years to commence on 8/5/26 and expire on 7/5/30.

Eligible for release to parole on 7/5/26.

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 SB [2018] NSWDC 474
Hearing dates:	20 June 2018
Decision date:	20 June 2018
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found – 1st time in custody, likely to be held in limited association or protection & would be assisted by a longer period of parole to assist in reintegration into the community, including counselling and/treatment in respect of alcohol abuse and sexual offending. Indicative sentences: Count 1: 10 years’ imprisonment with a NPP of 6 years and 8 months Count 5: 9 years’ imprisonment with a NPP of 6 years Aggregate sentence: Sentenced to a term of imprisonment for 12 years comprising a NPP of 8 years to commence on 8/5/18 and to expire on 7/5/26 and a balance of term of 4 years to commence on 8/5/26 and expire on 7/5/30. Eligible for release to parole on 7/5/26.
Catchwords:	CRIMINAL – sentence – after trial - child sex offences — sexual intercourse with person, under 10 - circumstances of aggravation – under authority–2 offences - victim the natural child of offender – digital vaginal penetration – abuse of trust and authority – alcohol, PTSD – ex-ADF veteran of Afghanistan and East Timor - subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Regina SB
Representation:	Counsel: Crown: Ms K Jeffreys Defence: Mr P Lonergan Solicitors: Crown: Ms S Shrubb Defence: Mr A Dikha
File Number(s):	2016/00129081
Publication restriction:	Non-publication order for name of complainant and offender or any evidence which might identify the complainant