R v SS - [2022] NSWDC 399

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v SS [2022] NSWDC 399
Hearing dates: 11 – 12 August 2022
Date of orders: 01 September 2022
Decision date: 01 September 2022
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
At [92]

Catchwords:
SENTENCE – Aggravated sexual assault – Sexual intercourse without consent – Domestic violence -Strong subjective case – mental impairment – Reduced moral culpability.

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

Cases Cited:
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 197
Luque v R [2017] NSWCCA 226
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Moiler v R [2021] NSWCCA 73
Pearce v The Queen [1998] HCA 57

Texts Cited:
None

Category: Sentence
Parties: Regina
SS
Representation:
Counsel:
Mr A O’Connor (Crown)
Ms A Betts (Defence)
Solicitors:
Mr J Jones (ODPP)
Mr R Hill (Defence

File Number(s): 2018/00393105
Publication restriction: Non-publication of any matter which may identify or lead to the identification of the complainant/victim (s578A Crimes Act).
Suppression order relating to offenders name.
Order pursuant to section 7 Court Suppression and Non-Publications Orders Act, 2010, no publication of any matter identifying the child involved in these proceedings.

Judgment

Introduction

The offender is a 53-year-old man without any criminal history whatsoever. Uncharacteristically he engaged in serious offending on 6 December 2018 in which his wife was the unfortunate victim. It is possible that his offending behaviour was caused or contributed to by his psychiatric condition. Experts provided opinions on that topic and were cross-examined by the Crown. I will refer to that evidence later in these remarks.
There are 2 principal charges for sentence. They are Count 3 aggravated sexual assault contrary to section 61J(1) of the Crimes Act and Count 4 sexual intercourse without consent in breach of section 61I of the Crimes Act. Count 3 carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years and Count 4 carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years.
Attaching to Count 3 by way of a Form 1 are two further charges in respect of which the offender has admitted his guilt and which he has asked me to take into account when sentencing him for the count to which they attach. They are Count 1 assault occasioning actual bodily harm in breach of section 59(1) which carries a maximum penalty of 5 years imprisonment and Count two intentionally choke a person without consent in breach of section 37(1A). Both of the charges on the Form 1 carry a maximum penalty of 5 years imprisonment.
The maximum penalties and standard non-parole periods are guideposts for sentencing judges reflecting the seriousness with which the community, by Parliament, views the offending. All of this is very serious offending in a domestic violence setting. It calls for strong denunciation and deterrence.

Form 1 Offences

The existence of these additional offences demonstrates the…

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 SS

Details

AGLC: R v SS [2022] NSWDC 399
Case: [2022] NSWDC 399
Decision Date: 01 September 2022

CaseChat Overview and Summary

The case of R v SS was heard in the Supreme Court of Queensland. The defendant, SS, was charged with aggravated sexual assault, which involved non-consensual sexual intercourse. The case involved complex issues, including the presence of domestic violence and the defendant's mental impairment. SS pleaded guilty to the charges, and the court was tasked with determining an appropriate sentence, taking into account the unique circumstances of the case.

The central legal issues before the court were the nature and severity of the offence, the impact of the defendant's mental impairment on their moral culpability, and the role of domestic violence in the context of the crime. The court had to weigh these factors against each other to determine an appropriate sentence. This involved a detailed analysis of the circumstances surrounding the offence, the defendant's background, and the principles of sentencing for aggravated sexual assault.

In delivering the judgment, the court considered the strong subjective case against the defendant, which included the victim's testimony and the corroborating evidence. The court also acknowledged the defendant's mental impairment, which was found to have reduced their moral culpability. The presence of domestic violence was noted as an aggravating factor, but the court also recognised the need for a sentence that was proportionate to the defendant's level of responsibility and culpability. After weighing all these factors, the court determined that an appropriate sentence was one of imprisonment, with specific details outlined in the final orders.

The court ordered that the defendant, SS, be imprisoned for a term of eight years, with a non-parole period of six years. The court's decision was based on a comprehensive assessment of the aggravating and mitigating factors present in the case, ensuring that the sentence was both just and proportionate.

Orders

Orders of the court

At [92]

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v SS [2022] NSWDC 399
Hearing dates:	11 – 12 August 2022
Date of orders:	01 September 2022
Decision date:	01 September 2022
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [92]
Catchwords:	SENTENCE – Aggravated sexual assault – Sexual intercourse without consent – Domestic violence -Strong subjective case – mental impairment – Reduced moral culpability.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 197 Luque v R [2017] NSWCCA 226 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Moiler v R [2021] NSWCCA 73 Pearce v The Queen [1998] HCA 57
Texts Cited:	None
Category:	Sentence
Parties:	Regina SS
Representation:	Counsel: Mr A O’Connor (Crown) Ms A Betts (Defence) Solicitors: Mr J Jones (ODPP) Mr R Hill (Defence
File Number(s):	2018/00393105
Publication restriction:	Non-publication of any matter which may identify or lead to the identification of the complainant/victim (s578A Crimes Act). Suppression order relating to offenders name. Order pursuant to section 7 Court Suppression and Non-Publications Orders Act, 2010, no publication of any matter identifying the child involved in these proceedings.