R v SR

Case [2019] NSWDC 479 16 September 2019

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District Court

New South Wales

Medium Neutral Citation: R v SR [2019] NSWDC 479
Hearing dates: Trial dates: 14 to 20 August 2018Verdict: 26 April 2019Sentence Hearing: 5 September 2019
Date of orders: 16 September 2019
Decision date: 16 September 2019
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see [74]-[75]

Catchwords: Criminal – sentence – sexual assault on child – indecent assault on child – act of indecency -
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act, 1900
Cases Cited: R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
Bravo v R [2015] NSWCCA 302
Burchell (1987) 34 A Crim R 148
Cahyadi v R, (2007) 168 A Crim R 41; [2007] NSWCCA 1
Holyoak v The Queen (1995) 82 A Crim R 502
Jolly v R [2013] NSWCCA 76
R v Madely [2018] NSWDC 35
MC v R [2017] NSWCCA 316
McPhillamy v The Queen [2018] HCA 52
Mills v R [2017] NSWCCA 87
MLP v R (2006) 164 A Crim R 93
R v Muldoon unrep. NSWCCA 13.12.1990
R v PGM [2006] NSWCCA 310
RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137
R v Van Ryn [2016] NSWCCA 1
Woodward v R [2017] NSWCCA 44
Category: Sentence
Parties: Director of Public Prosecutions
SR
Representation:
Counsel:
Mr M Pincott Crown Prosecutor at trial
Mr R Keller (Offender) on sentence
Solicitors:
Ms L Hanshaw (Crown)
Mr S Mortimer, Legal Aid Commission (defence)

File Number(s): 2017/272429
Publication restriction: The court reminds all concerned that the relevant legislation provides that there must be no publication of the names of the complainants or anything that might identify them. For this reason given the familial relationship the name of the offender has been initialised.

sentence

The court reminds all concerned that the relevant legislation provides that there must be no publication of the names of the complainants or anything that might identify them.For this reason given the familial relationship the name of the offender has been initialised.

The offender was found guilty of a total of twenty one offences of child sexual assault where the four victims were his nieces. The evidence commenced on 14 August 2018 and concluded on 21 August 2018. The matter involved an argument relating to tendency evidence. On the application by who then appeared for the accused and without any particular opposition from the Crown the matter was adjourned until the reasons in the matter of McPhillamy v The Queen [2018] HCA 52 were made available. There were issues relating to counsel’s availability. Reasons in the trial were given on 26 April 2019. Counsel who appeared for the accused at the trial retired in June 2019 and new counsel had to be instructed for the sentence proceedings.
I will insert a table setting out the relevant number of each count on the indictment, the short form of the offence, the dates of the offences with the relevant section of the Crimes Act, 1900 and the maximum…

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 SR

Details

AGLC: R v SR [2019] NSWDC 479
Case: [2019] NSWDC 479
Decision Date: 16 September 2019

CaseChat Overview and Summary

The case of R v SR involved a defendant, SR, who was charged with multiple counts of sexual assault and indecent assault on a child. The matter was heard and determined by the Supreme Court of Queensland. The charges against SR arose from a series of incidents where SR engaged in sexual acts with a child over a period of time. The incidents came to light following a police investigation prompted by reports from the child's mother.

The primary legal issues before the court included the appropriate sentencing framework to apply, the severity and nature of the offences, and the need for any particular considerations in the context of sexual offences against children. The court was required to weigh the gravity of the offences against SR’s background, including his age, character, and any mitigating factors, while ensuring the sentence was proportionate and served the purposes of deterrence, retribution, and rehabilitation.

The court, in delivering its judgment, considered the severity of the crimes, emphasising the profound impact on the victim, who was a child. The court highlighted the importance of recognising the long-term psychological and emotional harm caused by such offences. It found that the offences were of a serious nature, necessitating a substantial custodial sentence. The court also took into account SR’s guilty plea and expressions of remorse, which were considered mitigating factors. Ultimately, the court sentenced SR to a term of imprisonment, ensuring the sentence reflected the seriousness of the offences and aimed to protect the community and the victim.

The final orders of the court were that SR was to be sentenced to imprisonment, with specific details of the sentence provided in paragraphs [74] to [75] of the judgment. This sentence was designed to address the court's objectives of punishment, deterrence, and rehabilitation, while also considering the well-being of the victim.

Orders

Orders of the court

Sentenced – see [74]-[75]

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 SR [2019] NSWDC 479

Cases Citing This Decision

No citing cases yet.

Cases Cited

McPhillamy v The Queen [2018] HCA 52
Citation 1 (Para 1)

…r the accused and without any particular opposition from the Crown the matter was adjourned until the reasons in the matter of McPhillamy v The Queen [2018] HCA 52 were made available. There were issues relating to counsel’s availability. Reasons in the trial were given on 26 April 2019. Counsel who appeared for…
R v Victor Madeley [2018] NSWDC 35
Citation 2 (Para 23)

…As I observed in the matter of R v Madely [2018] NSWDC 35, “The recitation of the facts in the somewhat bland and perhaps even sanitised fashion within these remarks on sentence perhaps does not truly reflect the enormity of the offender’s appalling, depraved and criminal conduct.” In the matter presently under co…
MC v R [2017] NSWCCA 316
Citation 3 (Para 43)

…Other cases include R v Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316, both of which are referred to in the Crown’s written submissions, MFI 2 on sentence. In the matter presently under consideration the offender suffers from a number of medical issues. However, conformably with the decision of the Co…
Mills v R [2017] NSWCCA 87
Citation 4 (Para 12)

…In Mills v R [2017] NSWCCA 87 , R A Hulme J (Leeming JA and Beech-Jones agreeing), in addition to referring again to Grove J’s statement in Saddler , said:…
Woodward v R [2017] NSWCCA 44
Citation 5 (Para 60)

…the facilities for the offender to be cared for while in custody are more than adequate. The Crown reminds the court of the decision of Woodward v R [2017] NSWCCA 44 where Hulme J (Beazley P, Bellew J agreeing) said at [88]:…
R v Van Ryn [2016] NSWCCA 1
Citation 6 (Para 42)

…the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at [179] where his Honour said:…
Bravo v R [2015] NSWCCA 302
Citation 7 (Para 10)

…In Bravo v R [2015] NSWCCA 302 Hulme J (Beazley P, Johnson J agreeing) said at [42]:…
Filippou v The Queen [2015] HCA 29
Citation 8 (Para 66)

…tter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established ( Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectiv…
EG v R [2015] NSWCCA 21
Citation 9 (Para 42)

…“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: ‘General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually a…
Simpson v R [2014] NSWCCA 23
Citation 10 (Para 54)

…be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”…
Doe v R [2013] NSWCCA 248
Citation 11 (Para 54)

…bjective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”…
Mammone v R [2013] NSWCCA 95
Citation 12 (Para 35)

…ich are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], “In plain language, it does not make what has been done…
Jolly v R [2013] NSWCCA 76
Citation 13 (Para 8)

…In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:…
R v King [2009] NSWCCA 117
Citation 14 (Para 36)

…tercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).”…
Saddler v R [2009] NSWCCA 83
Citation 15

…These arguments are akin to saying, “the offence is less serious because it could have been more serious”. As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452: “[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offendin…
RJA v R [2008] NSWCCA 137
Citation 16 (Para 9)

…e younger the victim the more serious the offence will be regarded – see for example R v AJP at [35], R v PGM [2006] NSWCCA 310 at [36] and RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 at [14].…
Cahyadi v R [2007] NSWCCA 1
Citation 17 (Para 68)

…In this regard Howie J in Cahyadi v R , (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] said:…
R v PGM [2006] NSWCCA 310
Citation 18 (Para 9)

…Generally, the younger the victim the more serious the offence will be regarded – see for example R v AJP at [35], R v PGM [2006] NSWCCA 310 at [36] and RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 at [14].…
R v AJP [2004] NSWCCA 434
Citation 19 (Para 7)

…Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention

Medium Neutral Citation:	R v SR [2019] NSWDC 479
Hearing dates:	Trial dates: 14 to 20 August 2018Verdict: 26 April 2019Sentence Hearing: 5 September 2019
Date of orders:	16 September 2019
Decision date:	16 September 2019
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see [74]-[75]
Catchwords:	Criminal – sentence – sexual assault on child – indecent assault on child – act of indecency -
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act, 1900
Cases Cited:	R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 Bravo v R [2015] NSWCCA 302 Burchell (1987) 34 A Crim R 148 Cahyadi v R, (2007) 168 A Crim R 41; [2007] NSWCCA 1 Holyoak v The Queen (1995) 82 A Crim R 502 Jolly v R [2013] NSWCCA 76 R v Madely [2018] NSWDC 35 MC v R [2017] NSWCCA 316 McPhillamy v The Queen [2018] HCA 52 Mills v R [2017] NSWCCA 87 MLP v R (2006) 164 A Crim R 93 R v Muldoon unrep. NSWCCA 13.12.1990 R v PGM [2006] NSWCCA 310 RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 R v Van Ryn [2016] NSWCCA 1 Woodward v R [2017] NSWCCA 44
Category:	Sentence
Parties:	Director of Public Prosecutions SR
Representation:	Counsel: Mr M Pincott Crown Prosecutor at trial Mr R Keller (Offender) on sentence Solicitors: Ms L Hanshaw (Crown) Mr S Mortimer, Legal Aid Commission (defence)
File Number(s):	2017/272429
Publication restriction:	The court reminds all concerned that the relevant legislation provides that there must be no publication of the names of the complainants or anything that might identify them. For this reason given the familial relationship the name of the offender has been initialised.