R v SH

Case [2024] NSWDC 104 21 March 2024

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District Court

New South Wales

Medium Neutral Citation: R v SH [2024] NSWDC 104
Hearing dates: 15 March 2024
Date of orders: 21 March 2024
Decision date: 21 March 2024
Jurisdiction: Criminal
Before: Anderson SC DCJ
Decision:
(1) A non-publication order is made with respect to s 7 of the Court Suppression and Non-Publication Orders Act2010. I direct that the names of the young person and the victim or any features which might be able to identify either party are to be suppressed.
(2) In respect of the charge to which you have pleaded guilty, you are convicted.
(3) Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a period of imprisonment, you are ordered to comply with a community corrections order in place for 3 years commencing today.
(4) You must attend the Maitland Community Corrections Centre within seven days from today.
(5) The community corrections order will have the following conditions;
(a) You are not to commit any further offences.
(b) You must appear before the Court if called upon to do so at any time.
(c) For the period of the orders, or for any lesser period deemed appropriate, you must accept the supervision of the Department of Community Corrections and obey all reasonable directions of that service relating to ongoing counselling, including for mental health issues and if deemed necessary, a referral to an appropriate sex offender treatment program.
(d) You are not to assault, molest, interfere, stalk, contact or have anything to do with the victim in this matter.
(e) You must obey all reasonable directions of any treating health professional.
(f) You are to visit a general practitioner within 28 days as of today or as soon as possible for the purpose of obtaining a mental health treatment plan.
(g) You must visit a general practitioner within 28 days as of today or as soon as possible for the purpose of obtaining a referral for psychometric testing to assess any cognitive impairment or autism spectrum disorder.
(6) I make an order pursuant to section 3C(1) of the Child Protection (Offender's Registration) Act 2000 that the young person is not to be treated as a registrable person for the purposes of the Act.

Catchwords:
CRIMINAL – sentence – child sexual intercourse

Legislation Cited:
Child Protection (Offenders Registration) Act 2000
Children’s (Criminal Proceedings) Act 1987
Court Suppression and Non-Publication Orders Act2010
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v AA [2017] NSWCCA 84
BM v R [2019] NSWCCA 223
R v KNL [2005] NSWCCA 260
RJA v R [2014] NSWCCA 89
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
Jolly v R [2013] NSWCCA 76
R v Gavel [2014] NSWCCA 56
R v Millwood [2012] NSWCCA 2
Lloyd v R [2022] NSWCCA 18
Paul Campbell v R [2018] NSWCCA 87
R v Andrew Button (a pseudonym) [2021] NSWDC 829
R v DT [2019] NSWDC 673
R v KL

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 SH

Details

AGLC: R v SH [2024] NSWDC 104
Case: [2024] NSWDC 104
Decision Date: 21 March 2024

CaseChat Overview and Summary

In the matter of R v SH, the defendant faced charges relating to child sexual intercourse. The dispute was heard and determined by a court in Australia. The defendant pleaded guilty to the charge, leading to a sentencing hearing where the court was tasked with determining an appropriate sentence. The legal issues before the court included the appropriate penalty for the offence committed by a young person and the imposition of conditions under a community corrections order to ensure the rehabilitation of the offender and the protection of the community.

The court considered the principles of sentencing for young offenders, the need for rehabilitation, and the protection of the community. It was noted that the defendant had pleaded guilty, which was a mitigating factor. The court also took into account the defendant's age, the nature of the offence, and the risk of reoffending. The court ordered a non-publication order to protect the identities of the defendant and the victim. Instead of imposing a period of imprisonment, the court decided on a community corrections order for three years, considering it a more appropriate and rehabilitative approach.

The court imposed several conditions on the community corrections order, including compliance with ongoing counselling, potential referral to a sex offender treatment program, and prohibition from contacting the victim. The court also mandated visits to health professionals for mental health treatment and psychometric testing. The court further directed that the defendant would not be treated as a registrable person under the Child Protection (Offender's Registration) Act 2000. The orders reflect a balanced approach to sentencing that prioritises rehabilitation and community safety.

Orders

Orders of the court

(1) A non-publication order is made with respect to s 7 of the Court Suppression and Non-Publication Orders Act 2010. I direct that the names of the young person and the victim or any features which might be able to identify either party are to be suppressed.

(2) In respect of the charge to which you have pleaded guilty, you are convicted.

(3) Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a period of imprisonment, you are ordered to comply with a community corrections order in place for 3 years commencing today.

(4) You must attend the Maitland Community Corrections Centre within seven days from today.

(5) The community corrections order will have the following conditions;

(a) You are not to commit any further offences.

(b) You must appear before the Court if called upon to do so at any time.

(c) For the period of the orders, or for any lesser period deemed appropriate, you must accept the supervision of the Department of Community Corrections and obey all reasonable directions of that service relating to ongoing counselling, including for mental health issues and if deemed necessary, a referral to an appropriate sex offender treatment program.

(d) You are not to assault, molest, interfere, stalk, contact or have anything to do with the victim in this matter.

(e) You must obey all reasonable directions of any treating health professional.

(f) You are to visit a general practitioner within 28 days as of today or as soon as possible for the purpose of obtaining a mental health treatment plan.

(g) You must visit a general practitioner within 28 days as of today or as soon as possible for the purpose of obtaining a referral for psychometric testing to assess any cognitive impairment or autism spectrum disorder.

(6) I make an order pursuant to section 3C(1) of the Child Protection (Offender's Registration) Act 2000 that the young person is not to be treated as a registrable person for the purposes of the Act.

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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Citations

AGLC Citation

R v SH [2024] NSWDC 104

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

R v JR
[2022] NSWDC 618 Para 69

…In the case of R v JR [2022] NSWDC 618 there were three s 66A offences committed by a young person. In that instance, he received a 15% discount for the plea of guilty. I note that in this case, the young person appearing before me will receive a 25% discount. In the case of R v JR, the offences involved an offende…
Lloyd v R
[2022] NSWCCA 18 Para 66

…did not suffer such childhood disadvantages. Once it is recognised that moral culpability is reduced, as was recognised by McCallum JA in Lloyd v R [2022] NSWCCA 18 at [54], if the promotion of rehabilitation is not given substantial weight, the Court risks punishing an offender for having a dysfunctional childhood…
R v Andrew Button (a pseudonym)
[2021] NSWDC 829 Para 69

…In the case of R v Andrew Button (a pseudonym) [2021] NSWDC 829, another District Court case, this was a sentence after trial for an offender who was thirteen years of age at the time of the offending and the victim was five years of age. It involved the victim performing fellatio on the young person. It was an opp…
R v ROK
[2021] NSWDC 448 Para 72

…In R v ROK [2021] NSWDC 448, the young person was sentenced in respect of three counts contrary to s 66A and one count of sexual touching of a child between 10 and 16. An aggregate sentence of 4 years with a non-parole period of 2 years was imposed. The young person was 15 at the time of the offending, the victims…
R v KL
[2019] NSWDC 731 Para 71

…In R v KL [2019] NSWDC 731, the offender in that matter was 16 years old, the victim was 7 years old. The offending involved penile vaginal intercourse and digital intercourse on separate occasions over the course of one day. The sentencing judge concluded that the penile and vaginal intercourse was well into the m…
R v DT
[2019] NSWDC 673 Para 70

…The case of R v DT [2019] NSWDC 673, involved an offender who was 16 to 17 years of age, I note several years older than the offender in the matter currently under consideration. In R v DT , the victim was 9 or 10 years of age. The case involved multiple acts of indecency and sexual intercourse without consent. The…
BM v R
[2019] NSWCCA 223 Para 14

…not just a factor as part of the factual matrix. Cases such as R v AA [2017] NSWCCA 84 at [55] per Beech-Jones J (as his Honour then was) and BM v R [2019] NSWCCA 223 at [16]-[17] are authority for this proposition. Here, the age of the young person was 14 at the relevant time, and he is now 16. The age of the vict…
Paul Campbell v R
[2018] NSWCCA 87 Para 68

…In the case of Paul Campbell v R [2018] NSWCCA 87, which is one of the cases referred to by the Crown, the Court of Criminal Appeal set out a number of propositions which are useful to bear in mind. That case also dealt with an offence under s 66A of the Crimes Act 1900 . Hamill J stated at [38]:…
R v AA
[2017] NSWCCA 84 Para 14

…relevant matter when determining the objective seriousness of the offence, and not just a factor as part of the factual matrix. Cases such as R v AA [2017] NSWCCA 84 at [55] per Beech-Jones J (as his Honour then was) and BM v R [2019] NSWCCA 223 at [16]-[17] are authority for this proposition. Here, the age of the…
RJA v R
[2014] NSWCCA 89 Para 14

…half the statutory age for offences of this nature. The simple proposition set out in cases such as R v KNL [2005] NSWCCA 260 and repeated in RJA v R [2014] NSWCCA 89 is that the younger the child victim, the more serious the offence.…
R v Gavel
[2014] NSWCCA 56 Para 17

…es for that proposition include R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]; Jolly v R [2013] NSWCCA 76 Bellew J at [72] and R v Gavel [2014] NSWCCA 56 at [97].…
Jolly v R
[2013] NSWCCA 76 Para 17

…circumstances of the case in question. Authorities for that proposition include R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]; Jolly v R [2013] NSWCCA 76 Bellew J at [72] and R v Gavel [2014] NSWCCA 56 at [97].…
R v Millwood
[2012] NSWCCA 2 Para 66

…ssume such issues are somehow matters which should be innately known by a person. As recognised by her Honour Simpson J in the case of R v Millwood [2012] NSWCCA 2, an offender cannot bear equal moral responsibility with a person who did not suffer such childhood disadvantages. Once it is recognised that moral cul…
KT v R
[2008] NSWCCA 51 Para 33

…peting purposes of punishment and rehabilitation. There are many factors in this case pulling in different directions. As McLellan CJ at CL in R v KT [2008] NSWCCA 51 at [21]-[26], in which his Honour summarised relevant authorities to issues of this type, dealing with juvenile offenders, his Honour said this:…
R v KNL
[2005] NSWCCA 260 Para 14

…e victim was four years of age, less than half the statutory age for offences of this nature. The simple proposition set out in cases such as R v KNL [2005] NSWCCA 260 and repeated in RJA v R [2014] NSWCCA 89 is that the younger the child victim, the more serious the offence.…
R v AJP
[2004] NSWCCA 434 Para 17

…ing to the entirety of the facts and circumstances of the case in question. Authorities for that proposition include R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]; Jolly v R [2013] NSWCCA 76 Bellew J at [72] and R v Gavel [2014] NSWCCA 56 at [97].…

Legislation cited in this decision · 4

Court Suppression and Non-publication Orders Act 2010 (NSW)
2 mentions (from Para 1)
Child Protection (Offenders Registration) Act 2000 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 4)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v SH [2024] NSWDC 104
Hearing dates:	15 March 2024
Date of orders:	21 March 2024
Decision date:	21 March 2024
Jurisdiction:	Criminal
Before:	Anderson SC DCJ
Decision:	(1) A non-publication order is made with respect to s 7 of the Court Suppression and Non-Publication Orders Act2010. I direct that the names of the young person and the victim or any features which might be able to identify either party are to be suppressed. (2) In respect of the charge to which you have pleaded guilty, you are convicted. (3) Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a period of imprisonment, you are ordered to comply with a community corrections order in place for 3 years commencing today. (4) You must attend the Maitland Community Corrections Centre within seven days from today. (5) The community corrections order will have the following conditions; (a) You are not to commit any further offences. (b) You must appear before the Court if called upon to do so at any time. (c) For the period of the orders, or for any lesser period deemed appropriate, you must accept the supervision of the Department of Community Corrections and obey all reasonable directions of that service relating to ongoing counselling, including for mental health issues and if deemed necessary, a referral to an appropriate sex offender treatment program. (d) You are not to assault, molest, interfere, stalk, contact or have anything to do with the victim in this matter. (e) You must obey all reasonable directions of any treating health professional. (f) You are to visit a general practitioner within 28 days as of today or as soon as possible for the purpose of obtaining a mental health treatment plan. (g) You must visit a general practitioner within 28 days as of today or as soon as possible for the purpose of obtaining a referral for psychometric testing to assess any cognitive impairment or autism spectrum disorder. (6) I make an order pursuant to section 3C(1) of the Child Protection (Offender's Registration) Act 2000 that the young person is not to be treated as a registrable person for the purposes of the Act.
Catchwords:	CRIMINAL – sentence – child sexual intercourse
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Children’s (Criminal Proceedings) Act 1987 Court Suppression and Non-Publication Orders Act2010 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v AA [2017] NSWCCA 84 BM v R [2019] NSWCCA 223 R v KNL [2005] NSWCCA 260 RJA v R [2014] NSWCCA 89 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 Jolly v R [2013] NSWCCA 76 R v Gavel [2014] NSWCCA 56 R v Millwood [2012] NSWCCA 2 Lloyd v R [2022] NSWCCA 18 Paul Campbell v R [2018] NSWCCA 87 R v Andrew Button (a pseudonym) [2021] NSWDC 829 R v DT [2019] NSWDC 673 R v KL