R v SLD

Case [2024] NSWDC 480 16 October 2024

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v SLD (No 3) [2024] NSWDC 480
Hearing dates: 30 September 2024 – 4 October 2024, 8 October 2024, 16 October 2024
Date of orders: 16 October 2024
Decision date: 16 October 2024
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
Count 1 - Not guilty
Count 2 - Guilty
Count 3 - Not guilty

Catchwords:
CRIME – judge alone trial – high risk offender – previous conviction and sentence for murder of an infant – released into the community on an extended supervision order – non association with children condition - alleged contravention of extended supervision order – alleged associating with young children at a beach visit – meaning of associate – relevant actus reus and mens rea of offence -

Legislation Cited:
Crimes (High-Risk Offenders) Act 2006, ss 5(b), 9(1)(a), 12
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986, s 132(1), 132(6), 133(2), 133(3)
Terrorism Legislation Amendment (Police Powers and Parole) Act 2017 (NSW)

Cases Cited:
Athens v Randwick City Council [2005] NSWCA 317 [2005] 64 NSWLR 58
Coco v The Queen (1994) 179 CLR 427
Fleming v R (1998) 197 CLR 250
Goyal, in the matter of ACN 154 520 199 Pty Ltd (in Liq) [2018] FCA 129
Kirkpatrick v Kotis (2004) 62 NSWLR 567
Laming v Jennings [2018] VSCA 335
Repatriation Commission v Nation (1995) 57 FCR 25
Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340
State of New South Wales v SLD [2023] NSWSC 978
State of NSW v Wilkinson [2020] NSWSC 1813
TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68
Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664

Category: Principal judgment
Parties: Rex
SLD
Representation:
Counsel:
Mr D Bhutani (accused)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Ryan Payten Le Lawyers (accused)

File Number(s): 2023/00337580
Publication restriction: In accordance with s 15A of the Children (Criminal Proceedings) Act 1987 there is to be a prohibition on the publishing or broadcasting of the accused's name with respect to these proceedings.

Judgment

The accused is charged with three offences of failing to comply with an Extended Supervision Order in contravention of s 12 of the Crimes (High-Risk Offenders) Act 2006.
Mr T George, Crown Advocate, appeared on behalf the Director of Public Prosecutions. Mr Dev Bhutani, counsel, instructed by Ms Hayley Le, solicitor, appeared on behalf of the accused.
On 30 August 2002, the accused was sentenced to imprisonment for 20 years for the murder of a three-year-old child. As of 20 September 2023, the accused was the subject of an Extended Supervision Order (ESO) imposed by the Supreme Court.
It is alleged that on three occasions on 24 October 2023 the accused breached the terms of the order.
On 30 September 2024, the accused was arraigned on the three counts on the indictment. The accused made an election under s 132(1) of the Criminal Procedure Act 1986 (CPA) for trial…

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 SLD

Details

AGLC: R v SLD [2024] NSWDC 480
Case: [2024] NSWDC 480
Decision Date: 16 October 2024

CaseChat Overview and Summary

The case of R v SLD involved a high-risk offender, who had previously been convicted and sentenced for the murder of an infant. The individual was released into the community under an extended supervision order with a condition prohibiting any association with children. The defendant was alleged to have contravened this order by associating with young children during a beach visit. The matter was heard by a single judge in the Supreme Court of the state.

The primary legal issues that the court had to address were the interpretation of the term 'associate' within the context of the extended supervision order, as well as the relevant actus reus and mens rea of the alleged offence. The court had to determine whether the defendant's actions at the beach constituted an association with children and, if so, whether the requisite mens rea was present for the offence to be established.

The court found that the term 'associate' should be interpreted in a broad sense, encompassing any interaction or contact with children. The court also held that the mens rea for the offence required the defendant to be aware of the condition and to intentionally breach it. In applying these principles to the facts of the case, the court determined that the defendant had indeed contravened the order by interacting with children at the beach. However, the court acquitted the defendant on some counts due to insufficient evidence to establish the mens rea for those charges.

The final orders of the court were that the defendant was found not guilty on Count 1, guilty on Count 2, and not guilty on Count 3. The court's decision highlights the importance of clear and precise conditions within extended supervision orders, as well as the need for a high standard of proof to establish the requisite mens rea for such offences.

Orders

Orders of the court

Count 1 - Not guilty

Count 2 - Guilty

Count 3 - Not guilty

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 SLD [2024] NSWDC 480

Most Recent Citation

R v SLD (No 4) [2024] NSWDC 594

Cases citing this decision · 2 of 2 shown

State of New South Wales v SLD (Preliminary)
[2024] NSWSC 1645 Para 6

…rial in the District Court, on 16 October 2024, he was acquitted of two of the offences and convicted of one (the ESO breach offence): R v SLD (No 3) [2024] NSWDC 480.That matter was adjourned for a sentence hearing to 12 December 2024. On 16 December 2024, he was sentenced to imprisonment for 1 year and 6 months,…
R v SLD (No 4)
[2024] NSWDC 594 Para 1

…r 2024, whilst verdicts of not guilty were entered with respect to two remaining counts similarly alleging breach of s 12 of the Act ( R v SLD (No 3) [2024] NSWDC 480 (the verdict judgment).…

View all 2 citing cases →

Cases cited in this decision · 18 of 18 shown

State of New South Wales v SLD (Final)
[2023] NSWSC 978 Para 104

…Whilst the Crown and the accused accepted that the judgment of the Supreme Court, leading to the ESO ( State of New South Wales v SLD [2023] NSWSC 978), was admissible, neither party referred to the judgment in closing addresses. Whilst I have considered the judgment, I am not satisfied that it aids in resolving th…
State of New South Wales v Wilkinson (Preliminary)
[2020] NSWSC 1813 Para 97

…cused not approach or be within a certain distance of children. Reference was made to the observations of Hoeben CJ at CL in State of NSW v Wilkinson [2020] NSWSC 1813 that associate “means something significantly more than fleeting contact".…
Laming v Jennings
[2018] VSCA 335 Para 101

…ived from the language used, read fairly" and involves an objective analysis absent the objective thought processes of the judge: Laming v Jennings [2018] VSCA 335 at [123].…
Goyal, in the matter of ACN 154 520 199 Pty Ltd (in liq)
[2018] FCA 129 Para 102

…judgment of the Court: Athens v Randwick City Council [2005] NSWCA 317; [2005] 64 NSWLR 58; Goyal, in the matter of ACN 154 520 199 Pty Ltd (in Liq) [2018] FCA 129; Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340 at [81] to [82].…
TAL Life Ltd v Shuetrim
[2016] NSWCA 68 Para 106

…ns of the verb “associate". As Leeming JA (Beasley P and Emmett AJA agreeing) observed in TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 at [80]: –…
Sertari Pty Ltd v Quakers Hill SPV Pty Ltd
[2014] NSWCA 340 Para 102

…5] NSWCA 317; [2005] 64 NSWLR 58; Goyal, in the matter of ACN 154 520 199 Pty Ltd (in Liq) [2018] FCA 129; Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340 at [81] to [82].…
Thiess v Collector of Customs
[2014] HCA 12 Para 107

…It is important not to “make a fortress out of the dictionary": Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [23]. Ultimately, dictionary definitions are no substitute for the interpretive process of ascertaining the legal meaning of a word: Shuetrim at [80].…
Athens v Randwick City Council
[2005] NSWCA 317 Para 102

…meaning it is permissible to have regard to extrinsic evidence, relevantly, the reasons for the judgment of the Court: Athens v Randwick City Council [2005] NSWCA 317; [2005] 64 NSWLR 58; Goyal, in the matter of ACN 154 520 199 Pty Ltd (in Liq) [2018] FCA 129; Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA…
Kirkpatrick v Kotis
[2005] NSWSC 178 Para 94

…The accused referred to the judgment of Campbell J in Kirkpatrick v Kotis (2004) 62 NSWLR 567, in the context of contempt proceedings, that the Court approaches the question whether an order is ambiguous with the caution appropriate to the type of litigation which could result in a defendant being punished. In effect,…
Kirkpatrick v Kotis
[2004] NSWSC 1265 Para 94

…The accused referred to the judgment of Campbell J in Kirkpatrick v Kotis (2004) 62 NSWLR 567, in the context of contempt proceedings, that the Court approaches the question whether an order is ambiguous with the caution appropriate to the type of litigation which could result in a defendant being punished. In effect, if an…
Fleming v The Queen
[1998] HCA 68 Para 7

…In compliance with s 133(2) and (3) of the CPA, and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250, I remind myself of the following principles of law.…
Repatriation Commission v Nation, L
[1995] FCA 355 Para 100

…In Repatriation Commission v Nation (1995) 57 FCR 25 at [33] to [34], Beaumont J (with whom Black CJ and Jenkinson J agreed) said: –…
Coco v the Queen
[1994] HCA 15 Para 93

…erpretation which has the effect of abrogating the accused’s liberty should only occur with unmistakable and unambiguous language: Coco v The Queen (1994) 179 CLR 427 at 437.…
Stevens, G. v Westpac Banking Corporation
[1992] FCA 474

…een taken in this country. If, as in the case of a “speaking” order (see, e.g., ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248 at 262) its true meaning is “immediately plain”, the terms of the order will speak for themselves. If this is not the case, the true meani…
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales
[1982] HCA 24

…ct the language of the instrument when it has “a plain meaning” (see Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 per Mason J at 352).…
Australian Consolidated Press Ltd v Morgan
[1965] HCA 21

…the case, the true meaning may be ascertained according to ordinary rules of construction (see Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 per Windeyer J at 503; McNair Anderson Associates Pty Ltd v Hinch [ 1985] VicRp 30; (1985) VR 309 at 311–2; cf. Kwikspan Purlin System Pty Lt…
ICI Australia Operations Pty Ltd v Trade Practices Commission
[1992] FCA 707

…s country. If, as in the case of a “speaking” order (see, e.g., ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248 at 262) its true meaning is “immediately plain”, the terms of the order will speak for themselves. If this is not the case, the true meaning may be ascertain…
Gordon v Gonda
(1955) 1 WLR 885

…t or order is ambiguous, it may be permissible to resort to extrinsic material, including the reasons for judgment, to resolve the ambiguity (see Gordon v Gonda (1955) 1 All ER 762 at 765, 768). A similar approach has been taken in this country. If, as in the case of a “speaking” order (see, e.g., ICI Australia Operatio…

Legislation cited in this decision · 6

Criminal Procedure Act 1986 (NSW)
132(1), 132(6), 133(2), 133(3) 5 mentions (from Para 5)
Crimes (High Risk Offenders) Act 2006 (NSW)
12, 5(b), 9(1)(a) 4 mentions (from Para 1)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crime (High Risk Offenders) Act 2006 (NSW)
1 mention (from Para 24)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 105)
Terrorism Legislation Amendment (Police Powers and Parole) Act 2017 (NSW)
1 mention (from Para 105)

Medium Neutral Citation:	R v SLD (No 3) [2024] NSWDC 480
Hearing dates:	30 September 2024 – 4 October 2024, 8 October 2024, 16 October 2024
Date of orders:	16 October 2024
Decision date:	16 October 2024
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	Count 1 - Not guilty Count 2 - Guilty Count 3 - Not guilty
Catchwords:	CRIME – judge alone trial – high risk offender – previous conviction and sentence for murder of an infant – released into the community on an extended supervision order – non association with children condition - alleged contravention of extended supervision order – alleged associating with young children at a beach visit – meaning of associate – relevant actus reus and mens rea of offence -
Legislation Cited:	Crimes (High-Risk Offenders) Act 2006, ss 5(b), 9(1)(a), 12 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986, s 132(1), 132(6), 133(2), 133(3) Terrorism Legislation Amendment (Police Powers and Parole) Act 2017 (NSW)
Cases Cited:	Athens v Randwick City Council [2005] NSWCA 317 [2005] 64 NSWLR 58 Coco v The Queen (1994) 179 CLR 427 Fleming v R (1998) 197 CLR 250 Goyal, in the matter of ACN 154 520 199 Pty Ltd (in Liq) [2018] FCA 129 Kirkpatrick v Kotis (2004) 62 NSWLR 567 Laming v Jennings [2018] VSCA 335 Repatriation Commission v Nation (1995) 57 FCR 25 Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340 State of New South Wales v SLD [2023] NSWSC 978 State of NSW v Wilkinson [2020] NSWSC 1813 TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664
Category:	Principal judgment
Parties:	Rex SLD
Representation:	Counsel: Mr D Bhutani (accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) Ryan Payten Le Lawyers (accused)
File Number(s):	2023/00337580
Publication restriction:	In accordance with s 15A of the Children (Criminal Proceedings) Act 1987 there is to be a prohibition on the publishing or broadcasting of the accused's name with respect to these proceedings.