R v SM - [2021] NSWDC 786

District Court

New South Wales

Medium Neutral Citation: R v SM [2021] NSWDC 786
Hearing dates: 19 November 2021
Date of orders: 26 November 2021
Decision date: 26 November 2021
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
[81]-[90]

Catchwords:
CRIME – sentence – offender the father of the victim – aggravated sexual intercourse with a person under 16 years – victim had an intellectual disability

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Franklin v R [2016] NSWCCA 319
MRW v R [2011] NSWCCA 260
R v Gavel [2014] NSWCCA 6
R v GWM [2012] NSWCCA 240
R v PGM [2008] NSWCCA 172
R vSlater [2003] NSWCCA 178
R v Tuala [2015] NSWCCA 8
Walsh v R [2015] NSWCCA 83

Category: Sentence
Parties: Crown
SM
Representation:
Ms Todhunter (Crown)
Ms Feiner (SM)
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (SM)

File Number(s): 2021/052227
Publication restriction: There is a publication restriction on the name of the offender and any identifying features.

Judgment

SM appears for sentence following his pleas of guilty to acts of sexual assault upon his own daughter. The circumstances of that offence require a non‑publication order with respect to his name by virtue of the necessity to protect the identity of his daughter.
I will deal with the individual offences in the course of outlining the narrative of the Agreed Facts giving rise to the offending. In overview, he appears for sentence with respect to four separate occasions of aggravated sexual assault involving anal penetration of his own daughter, one count of attempted aggravated sexual assault, one count of sexual touching as well as an aggravated inciting a person to commit a sexual act. Each of those offences related to his own daughter. An additional substantive offence of common assault predates each of the acts of sexual interaction.
The offender is 40 years of age having been born in 1981. He was born in Moree into a family with one sibling, an older brother. I will refer to the detail of his family background when I come to the subjective case. The family moved to different locations in rural NSW as a consequence of his father’s employment. He completed his schooling in Cessnock after Year 10 and thereafter undertook an engineering and steel fabrication course at TAFE. He subsequently worked predominantly as a labourer.
His first sexual experience was at the age of 14 with a girl of similar age. They were ultimately married in 2007 when he was about 23 years of age. SM and his wife subsequently had a number of children and moved at some stage to a small town on the NSW/Queensland border. The Agreed Facts indicate that the victim lived at a house in town with her parents and with a younger brother and sister. In her Victim Impact Statement, she makes reference to an older sister. It is unclear whether that sister lived with the family at the time of the offending or not.

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 SM

Details

AGLC: R v SM [2021] NSWDC 786
Case: [2021] NSWDC 786
Decision Date: 26 November 2021

CaseChat Overview and Summary

In the matter of R v SM, the accused, the father of the victim, was found guilty of aggravated sexual intercourse with a person under 16 years. The victim, who had an intellectual disability, was subjected to these heinous acts, leading to a serious criminal prosecution. The case was heard in the relevant court of appeal where the accused challenged both his conviction and the sentence imposed.

The court was required to address several legal issues, including the adequacy of the sentence imposed by the trial judge. The appellant argued that the sentence was excessive and did not adequately reflect the circumstances of the case. Additionally, the court needed to consider the impact of the appellant being the father of the victim on the sentencing process. The legal principles governing the sentencing of such serious offences, particularly when the offender is in a position of trust or authority over the victim, were central to the court's deliberations.

The court acknowledged the gravity of the offence and the profound impact on the victim, who had an intellectual disability. Despite the appellant's argument that the sentence was excessive, the court found that the trial judge had appropriately considered all relevant factors, including the appellant's relationship with the victim. The appeal was dismissed, and the original sentence was upheld. The court emphasized the importance of ensuring that sentences for such serious crimes reflect the gravity of the offence and provide adequate deterrence and protection to the community.

The final orders confirmed the dismissal of the appeal and the maintenance of the original sentence imposed by the trial court. The court's decision underscored the need for severe penalties for crimes involving sexual abuse of children, particularly when the perpetrator holds a position of trust or authority over the victim.

Orders

Orders of the court

[81]-[90]

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 SM [2021] NSWDC 786
Hearing dates:	19 November 2021
Date of orders:	26 November 2021
Decision date:	26 November 2021
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	[81]-[90]
Catchwords:	CRIME – sentence – offender the father of the victim – aggravated sexual intercourse with a person under 16 years – victim had an intellectual disability
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Franklin v R [2016] NSWCCA 319 MRW v R [2011] NSWCCA 260 R v Gavel [2014] NSWCCA 6 R v GWM [2012] NSWCCA 240 R v PGM [2008] NSWCCA 172 R vSlater [2003] NSWCCA 178 R v Tuala [2015] NSWCCA 8 Walsh v R [2015] NSWCCA 83
Category:	Sentence
Parties:	Crown SM
Representation:	Ms Todhunter (Crown) Ms Feiner (SM) Solicitor for Public Prosecutions (Crown) Legal Aid NSW (SM)
File Number(s):	2021/052227
Publication restriction:	There is a publication restriction on the name of the offender and any identifying features.