R v TD - [2018] NSWDC 180

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v TD [2018] NSWDC 180
Hearing dates: 14 June 2018
Decision date: 05 July 2018
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [82]

Catchwords:
Groom child for unlawful sexual activity; possess child abuse material

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1987
Criminal Code 1995 (Cth)

Cases Cited:
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Efthimiadis v R [2013] NSWCCA 276
R v Asplund [2010] NSWCCA 316
R v Cahyadi [2007] NSWCCA 1
R v De Leeuw [2015] NSWCCA 183
R v Fuller [2010] NSWCCA 192
R v JF [2017] NSWCCA 217
R v MMK (2006) 164 ACrimR 481
R v Porte [2015] NSWCCA 174
R (Cth) v Poynder [2007] NSWCCA 157
R v Wilkinson (No. 5) [2009] NSWSC 432
TM v R [2018] NSWCCA 88

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
TD (Offender)
Representation:
Counsel:
S Climo (Offender)
Solicitors:
I Maxwell-Williams (Crown Solicitor)

File Number(s): 17/129877
Publication restriction: Non-publication of name of complainant.
The offender is not to be identified, as a previous offence was committed whilst he was still a juvenile: S 15A Children (Criminal Proceedings) Act 1987 (NSW)

REMARKS ON SENTENCE

The offender, who was born on 30 August 1995, was charged with the following offences:

Groom child for unlawful sexual activity pursuant to s 66EB(3) of the Crimes Act 1900.

The maximum penalty for that offence is 10 years imprisonment and there is a Standard Non-Parole Period of 4 years imprisonment.

Possess child abuse material pursuant to s 91H(2) of the Crimes Act 1900.

The maximum penalty for that offence is 10 years imprisonment. There is no Standard Non-Parole Period.

The offender had on 22 August 2016 been sentenced at Armidale Local Court in respect of the following offences:

Stalk/intimidate (call-up of s 9 Bond).

Escape police custody.

Take/drive conveyance x 2.

Custody of a knife.

He was sentenced to concurrent sentences totalling 12 months imprisonment with a non-parole period of six months. The non-parole period expired on 21 February 2017, and his supervised parole was due to expire on 21 August 2017.
The subject offences occurred between 1 March 2017 and 2 May 2017, when the offender was arrested. On 17 May 2017 his parole was revoked and he was ordered to serve the balance of three months and 25 days commencing on 1 May 2017. That period expired on 25 August 2017. The offender has been in custody, attributable solely to the subject offences since 25 August 2017.

The sentence hearing

The sentence hearing took place on 14 June 2018 at Taree District Court. The Crown Sentence Summary became Ex A. It contained a Statement of Agreed Facts, which may be summarised as follows.
In early 2017, the offender resided in Armidale. He had previously lived in Taree and knew of the victim’s older sister. The victim SN, was 14 years of age and resided with her mother and…

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 TD

Details

AGLC: R v TD [2018] NSWDC 180
Case: [2018] NSWDC 180
Decision Date: 05 July 2018

CaseChat Overview and Summary

The case before the Court involved an individual identified as TD, who was charged with grooming a child for unlawful sexual activity and possessing child abuse material. The matter was heard in the County Court of Victoria. TD pleaded guilty to the charges and, in light of the admissions, the Crown did not proceed to call witnesses. The defence presented a single witness, and the Court proceeded to consider the appropriate sentence.

The central legal issue was the appropriate sentence for TD, taking into account the seriousness of the offences, the aggravating and mitigating factors, and the principles of sentencing. The Court had to balance the need to deter and protect the community against the potential for rehabilitation of the offender. The Court also had to consider the impact on the victim, the need for denunciation, and the proportionality of the sentence.

The Court, in delivering its judgment, emphasised the gravity of the offences, noting that they involved serious breaches of community standards and a significant level of harm to the victim. The Court found that the offences demonstrated a premeditated and deliberate course of conduct aimed at facilitating unlawful sexual activity with a child. In assessing the aggravating factors, the Court highlighted the vulnerable position of the victim, the invasive nature of the offences, and the potential for re-offending. As for the mitigating factors, the Court acknowledged TD's guilty plea and expressed remorse. However, the Court found that these factors did not sufficiently mitigate the seriousness of the crimes. Ultimately, the Court determined that a full-time custodial sentence was necessary to appropriately address the offences and to uphold the principles of justice.

Orders

Orders of the court

Full-time custodial sentence. For orders see [82]

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 TD [2018] NSWDC 180
Hearing dates:	14 June 2018
Decision date:	05 July 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [82]
Catchwords:	Groom child for unlawful sexual activity; possess child abuse material
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1987 Criminal Code 1995 (Cth)
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWCCA 194 Efthimiadis v R [2013] NSWCCA 276 R v Asplund [2010] NSWCCA 316 R v Cahyadi [2007] NSWCCA 1 R v De Leeuw [2015] NSWCCA 183 R v Fuller [2010] NSWCCA 192 R v JF [2017] NSWCCA 217 R v MMK (2006) 164 ACrimR 481 R v Porte [2015] NSWCCA 174 R (Cth) v Poynder [2007] NSWCCA 157 R v Wilkinson (No. 5) [2009] NSWSC 432 TM v R [2018] NSWCCA 88
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) TD (Offender)
Representation:	Counsel: S Climo (Offender) Solicitors: I Maxwell-Williams (Crown Solicitor)
File Number(s):	17/129877
Publication restriction:	Non-publication of name of complainant. The offender is not to be identified, as a previous offence was committed whilst he was still a juvenile: S 15A Children (Criminal Proceedings) Act 1987 (NSW)