R v Swain - [2020] NSWDC 911

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Swain [2020] NSWDC 911
Hearing dates: 1 December 2020
Date of orders: 3 December 2020
Decision date: 03 December 2020
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
Aggregate term of imprisonment of 7 years with a non-parole of 4 years

Catchwords:
SENTENCING — Aggravating factors — Home of victim or any other person
SENTENCING — Mitigating factors — Plea of guilty – Remorse
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
CRIME — Child sex offences — Sexual intercourse with child >10 <14 — Circumstances of aggravation

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Bugmy v R (2013) 249 CLR 571; HCA 37
Cahyadi v R (2007) 168 A Crim R 41; NSWCCA 1
Imbornone v R [2017] NSWCCA 144
R v Dent (unreported, NSWCCA 4 March 1991)
R v Nelson [2016] NSWCCA 130

Category: Sentence
Parties: Regina (Crown)
Jesse Swain (Offender)
Representation:
Counsel:
Ms K Tennant (Crown)
Mr J O’Sullivan (Offender)
Solicitors:
Ms B Nettleton (Office of the Director of Public Prosecutions)
Mr J Arms (Offender)

File Number(s): 2018/00367612
Publication restriction: Statutory non-publication order in relation to the identity of the complainant

Judgment

The offender, Jesse Swain, now 39 years of age appears for sentence in relation to five sexual offences, four relate to HK who was then aged 10 years. The offending occurred between 1995 and 1996. At the time of those four offences, the offender was 14 years of age. The remaining offence relates to JS who was aged 12 years at the time of the offending, that offending occurred in 2017.
The offences in respect of which the offender appears for sentence are as follows:

Count 1 - An offence of aggravated indecent assault pursuant to s 61M (1), Crimes Act 1900 (NSW).

Count 3 - A further offence of aggravated indecent assault pursuant to s 61M(1), Crimes Act; and

Count 4 - A further offence of aggravated indecent assault pursuant to s 61M(1), Crimes Act.

The maximum prescribed penalty for each of those offences at the time of the commission of the offences was 7 years imprisonment. There was no prescribed standard non-parole period. The maximum prescribed penalty available in the Children’s Court was 2 years imprisonment.

Count 2 - An offence of aggravated commit act of indecency towards a child, an offence pursuant to s 61O(1), Crimes Act.

The maximum prescribed penalty for that offence is 5 years imprisonment. There is no prescribed standard non‑parole period and, again, the maximum prescribed penalty available in Children’s Court is 2 years imprisonment.

Count 7 – An offence of sexual intercourse (victim JS) with a child above the age of 10 years and under the age of 14 years in circumstances of aggravation, an offence pursuant to s 66C(2), Crimes Act.

The maximum prescribed penalty available for that offence is 20 years imprisonment. There is a prescribed standard…

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 Swain

Details

AGLC: R v Swain [2020] NSWDC 911
Case: [2020] NSWDC 911
Decision Date: 03 December 2020

CaseChat Overview and Summary

The case of R v Swain involved the sentencing of the defendant, Swain, who had been convicted of multiple child sex offences. The primary issue before the court was to determine an appropriate sentence for Swain, considering various aggravating and mitigating factors. The court had to assess the seriousness of the offences, the impact on the victim, and Swain's remorse and other personal circumstances.

The legal issues that the court addressed included the relevance of the victim's home being a location of the offence, the defendant's plea of guilty, and the presence of remorse. Additionally, the court had to consider the cumulative nature of the offences and the appropriate aggregate sentence that would adequately reflect the seriousness of the crimes committed. The court also weighed the need for deterrence and the protection of the community against the rehabilitative potential of Swain.

In reaching its decision, the court recognised the severe nature of the offences, noting that sexual intercourse with a child over the age of ten is a grave violation of personal integrity and trust. The court acknowledged the defendant's early guilty plea and some degree of remorse as mitigating factors but emphasised the importance of the overall impact of the crimes on the victim and society. The court concluded that an aggregate term of imprisonment was necessary to appropriately reflect the seriousness of the offences, while also providing an opportunity for rehabilitation. The final sentence imposed was a term of seven years imprisonment, with a non-parole period of four years.

Orders

Orders of the court

Aggregate term of imprisonment of 7 years with a non-parole of 4 years

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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Medium Neutral Citation:	R v Swain [2020] NSWDC 911
Hearing dates:	1 December 2020
Date of orders:	3 December 2020
Decision date:	03 December 2020
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Aggregate term of imprisonment of 7 years with a non-parole of 4 years
Catchwords:	SENTENCING — Aggravating factors — Home of victim or any other person SENTENCING — Mitigating factors — Plea of guilty – Remorse SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences CRIME — Child sex offences — Sexual intercourse with child >10 <14 — Circumstances of aggravation
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v R (2013) 249 CLR 571; HCA 37 Cahyadi v R (2007) 168 A Crim R 41; NSWCCA 1 Imbornone v R [2017] NSWCCA 144 R v Dent (unreported, NSWCCA 4 March 1991) R v Nelson [2016] NSWCCA 130
Category:	Sentence
Parties:	Regina (Crown) Jesse Swain (Offender)
Representation:	Counsel: Ms K Tennant (Crown) Mr J O’Sullivan (Offender) Solicitors: Ms B Nettleton (Office of the Director of Public Prosecutions) Mr J Arms (Offender)
File Number(s):	2018/00367612
Publication restriction:	Statutory non-publication order in relation to the identity of the complainant