R v SMP

Case [2018] NSWLC 2 20 March 2018

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Local Court

New South Wales

Medium Neutral Citation: R v SMP [2018] NSWLC 2
Hearing dates: 6 February and 20 March 2018
Decision date: 20 March 2018
Jurisdiction: Criminal
Before: Judge Graeme Henson, Chief Magistrate
Decision:
See [48] and [54].

Catchwords: CRIMINAL LAW – Sentencing – assault with an act of indecency – historical offences – offender juvenile at time offending – committed in victim's home – breach of trust – towards upper level of objective seriousness - prior good character - unlikely to reoffend – good prospects of rehabilitation – utilitarian value of guilty plea – mistake to assume proceedings would have been dealt with in children’s jurisdiction – at odds with current authority – court must approach sentencing on basis of penalties which existed at time of offending, and prevailing sentencing patterns and procedures – sentence of imprisonment imposed - suspended on condition that offender enter bond for each conviction
Legislation Cited: Child Welfare Act 1939 (NSW) (repealed)
Crimes Act 1900 (NSW) s 61E(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(g), 5, 10, 21A(2)(g), 21A(2)(eb), 21A(2)(l), 27(3)(d), 32
Cases Cited: Jonson v R [2016] NSWCCA 286
MC v R [2017] NSWCCA 316
PH v R [2009] NSWCCA 161
PWB v R [2011] NSWCCA 84
R v Borkowski [2009] NSWCCA 102
R v Doan (2000) 50 NSWLR 115
R v JCW [2000] NSWCCA 209
R v Lulham [2016] NSWCCA 287
R v Mailes (2003) 142 A Crim R 353
R v Nelson [2016] NSWCCA 130
R v Taylor [2000] NSWCCA 442
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Ware (unreported, NSWCCA, 9 July 1997)
R v Zamagias [2002] NSWCCA 17
TC v R [2016] NSWCCA 3
Wilmot v R (2007) 169 A Crim R 280
Category: Sentence
Parties: NSW Director of Public Prosecutions (prosecutors)
SMP (defendant)
Representation:
Counsel:

T Edwards, of counsel (for the defendant)

Solicitors:
L Gallagher, NSW Director of Public Prosecutions (for the prosecution)
T O’Rourke, solicitor (for the defendant)

File Number(s): 2016/232906
Publication restriction: Order made prohibiting the publication of any details capable of giving rise to a capacity to identify the victim in these proceedings. Such orders to extend to identifying the defendant pursuant to 15(i)(a) Children (Criminal Proceedings) Act 1987 (NSW).

Judgment

The defendant (SMP) is to be sentenced in relation to three counts of assault with an act of indecency. Each charge is brought pursuant to section 61E(1) of the Crimes Act 1900 (NSW). The maximum penalty for each offence as at the date of the commission of each offence was 6 years imprisonment. Against that statutory expression the jurisdiction in which sentence is to take place is one that ordinarily acknowledges the decision in R v Doan (2000) 50 NSWLR 115 wherein the Court of Criminal Appeal said that the jurisdictional limit does not detract from the objective seriousness of the offence. The jurisdictional circumstances in these proceedings are complicated further by the fact that the offences for which the defendant is to be sentenced are…

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 SMP

Details

AGLC: R v SMP [2018] NSWLC 2
Case: [2018] NSWLC 2
Decision Date: 20 March 2018

CaseChat Overview and Summary

The appellant, SMP, was convicted of multiple counts of assault with an act of indecency against two young girls. The incidents occurred when the offender was a juvenile and took place in the victims' home, where the offender had been in a position of trust. The case came before the court to determine the appropriate sentence for these historical offences. The legal issues that the court had to decide included the appropriate application of sentencing principles to historical offences committed by a juvenile, the relevance of the offender's good character and prospects of rehabilitation, and the impact of the offender's guilty plea on the sentencing process. The court also had to consider whether the mistake of assuming that the proceedings would be dealt with in the children's jurisdiction was compatible with current sentencing authority.

In delivering its decision, the court emphasised that when sentencing for historical offences, it must approach the matter on the basis of the penalties which existed at the time of the offending and the prevailing sentencing patterns and procedures. The court held that despite the offender's juvenile status at the time of the offences, the severity of the acts and the breach of trust warranted a sentence towards the upper level of objective seriousness. The court also recognised the offender's prior good character and the likelihood of rehabilitation, as well as the utilitarian value of the offender's guilty plea. However, the court found that it was inappropriate to consider the mistaken assumption that the proceedings would be dealt with in the children's jurisdiction, as this was at odds with current authority. Ultimately, the court imposed a sentence of imprisonment, which was suspended on the condition that the offender enter a bond for each conviction.

The final orders of the court were that the sentences of imprisonment were to be suspended on the condition that the offender enter a bond for each conviction, with specific terms and conditions outlined in the judgment. The court also made orders for the offender to participate in a rehabilitation program and to comply with other specified requirements. The outcome of this case provides guidance for courts when dealing with similar historical offences committed by juveniles, emphasising the importance of applying appropriate sentencing principles and considering the specific circumstances of each case.

Orders

Orders of the court

See [48] and [54].

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

R v SMP [2018] NSWLC 2

Cases Citing This Decision

No citing cases yet.

Cases Cited

MC v R [2017] NSWCCA 316
Citation 1 (Para 28)

…faced in PWB is not materially different to that confronting this Court – the problem of sentencing an offender for historical offences. In MC v R [2017] NSWCCA 316 it is settled law that a Court must approach the sentencing of the offender on the basis of the maximum penalties that existed at the time of offending…
R v Lulham [2016] NSWCCA 287
Citation 2 (Para 16)

…a reality cannot be taken into account if the offender and the victim share the same house. Why that is so is explained by Bathurst CJ in R v Lulham [2016] NSWCCA 287 at [5] . The Chief Justice said:-…
Jonson v R [2016] NSWCCA 286
Citation 3 (Para 16)

…two matters to which pleas have been entered by reason of section 21A(2)(eb). These offences were committed in the home of the victim. As Jonson v R [2016] NSWCCA 286 at [40] confirms, it is no longer the law that such a reality cannot be taken into account if the offender and the victim share the same house. Why t…
R v Nelson [2016] NSWCCA 130
Citation 4 (Para 18)

…ubmission of the victim. Given her age in these matters it is of no relevance. I adopt the submission of the Crown in citing Basten J in R v Nelson [2016] NSWCCA 130 as to his honour’s observations of “lack of opposition”. Counsel for the defendant was right not to venture down this avenue.…
TC v R [2016] NSWCCA 3
Citation 5 (Para 38)

…re) Act. That was a view taken by the District Court in relation to an historical prosecution and confirmed by the Criminal Court of Appeal in TC v R [2016] NSWCCA 3 . It is appropriate to note that in that case the offending was at a lower level than that which occurred in these proceedings. For my own part altho…
PWB v R [2011] NSWCCA 84
Citation 6 (Para 17)

…by reason of a breach of trust on the part of the defendant. In support of that argument the Court’s attention is drawn to the decision in PWB v R [2011] NSWCCA 84 at [19]. The observations of Hulme J are worthy of repetition. His Honour said:…
PH v R [2009] NSWCCA 161
Citation 7 (Para 40)

…less weight when the time between offending and sentence is considerable and there has been no further offending. However, as Howie J said in PH v R [2009] NSWCCA 161 at [32]:…
R v Robert Borkowski [2009] NSWCCA 102
Citation 8 (Para 4)

…999 (NSW). The utilitarian value of the plea is affected in the manner described in R v Thomson; R v Houlton (2000) 49 NSWLR 383 and in R v Borkowski [2009] NSWCCA 102. The Court allows a discount of 15% for the utilitarian value of the plea.…
R v Doan [2003] NSWSC 345
Citation 9 (Para 1)

…t. Against that statutory expression the jurisdiction in which sentence is to take place is one that ordinarily acknowledges the decision in R v Doan (2000) 50 NSWLR 115 wherein the Court of Criminal Appeal said that the jurisdictional limit does not detract from the objective seriousness of the offence. The jurisdict…
R v Zamagias [2002] NSWCCA 17
Citation 10 (Para 49)

…Having determined the length of each sentence it remains, in accordance with the principles set out in R v Zamagias [2002] NSWCCA 17, to determine the manner in which it is to be served. Here again appellate court decisions point in different directions. In PWB the Court was urged to release the offender on a bond…
R v Taylor [2000] NSWCCA 442
Citation 11 (Para 51)

…These observations are qualified by the observation in R v Taylor [2000] NSWCCA 442 wherein Wood CJ at CL observed that where a full time custodial order was necessary to reflect adequately the element of general deterrence, a suspended sentence provides very little if anything by way of general deterrence. In the o…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 12 (Para 4)

…f the Crimes (Sentencing Procedure) Act 1999 (NSW). The utilitarian value of the plea is affected in the manner described in R v Thomson; R v Houlton (2000) 49 NSWLR 383 and in R v Borkowski [2009] NSWCCA 102. The Court allows a discount of 15% for the utilitarian value of the plea.…
R v JCW [2000] NSWCCA 209
Citation 13 (Para 11)

…e of the statement in the facts cannot be used to aggravate the sentence for the charged offences R v Mailes (2003) 142 A Crim R 353 at [51]; R v JCW [2000] NSWCCA 209 at [68].…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 10, 21A(2)(eb), 21A(2)(g), 21A(2)(l), 27...
9 mentions (from Para 4)
Crimes Act 1900 (ACT) 61E(1)
2 mentions (from Para 1)
Child Protection (Offenders Registration) Act 2000 (NSW)
1 mention (from Para 56)
Child Welfare Act 1939 (NSW)
1 mention (from Para 1)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention

Medium Neutral Citation:	R v SMP [2018] NSWLC 2
Hearing dates:	6 February and 20 March 2018
Decision date:	20 March 2018
Jurisdiction:	Criminal
Before:	Judge Graeme Henson, Chief Magistrate
Decision:	See [48] and [54].
Catchwords:	CRIMINAL LAW – Sentencing – assault with an act of indecency – historical offences – offender juvenile at time offending – committed in victim's home – breach of trust – towards upper level of objective seriousness - prior good character - unlikely to reoffend – good prospects of rehabilitation – utilitarian value of guilty plea – mistake to assume proceedings would have been dealt with in children’s jurisdiction – at odds with current authority – court must approach sentencing on basis of penalties which existed at time of offending, and prevailing sentencing patterns and procedures – sentence of imprisonment imposed - suspended on condition that offender enter bond for each conviction
Legislation Cited:	Child Welfare Act 1939 (NSW) (repealed) Crimes Act 1900 (NSW) s 61E(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(g), 5, 10, 21A(2)(g), 21A(2)(eb), 21A(2)(l), 27(3)(d), 32
Cases Cited:	Jonson v R [2016] NSWCCA 286 MC v R [2017] NSWCCA 316 PH v R [2009] NSWCCA 161 PWB v R [2011] NSWCCA 84 R v Borkowski [2009] NSWCCA 102 R v Doan (2000) 50 NSWLR 115 R v JCW [2000] NSWCCA 209 R v Lulham [2016] NSWCCA 287 R v Mailes (2003) 142 A Crim R 353 R v Nelson [2016] NSWCCA 130 R v Taylor [2000] NSWCCA 442 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Ware (unreported, NSWCCA, 9 July 1997) R v Zamagias [2002] NSWCCA 17 TC v R [2016] NSWCCA 3 Wilmot v R (2007) 169 A Crim R 280
Category:	Sentence
Parties:	NSW Director of Public Prosecutions (prosecutors) SMP (defendant)
Representation:	Counsel: T Edwards, of counsel (for the defendant) Solicitors: L Gallagher, NSW Director of Public Prosecutions (for the prosecution) T O’Rourke, solicitor (for the defendant)
File Number(s):	2016/232906
Publication restriction:	Order made prohibiting the publication of any details capable of giving rise to a capacity to identify the victim in these proceedings. Such orders to extend to identifying the defendant pursuant to 15(i)(a) Children (Criminal Proceedings) Act 1987 (NSW).