R v Threlkeld - [2019] NSWDC 695

District Court

New South Wales

Medium Neutral Citation: R v Threlkeld [2019] NSWDC 695
Hearing dates: 15 November 2019
Date of orders: 22 November 2019
Decision date: 22 November 2019
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 127-130

Catchwords: CRIMINAL LAW – sentencing – sexual intercourse with a person under the age of 16 – indecent assault of a person under the age of 16 – significance of sexual intercourse and other sexual activities being consensual – significance of offender’s anxiety and depression at time of offending – significance of offender’s assistance to authorities relating to unrelated offences between the commission of the various offences
Legislation Cited: Crimes (Sentencing Procedures) Act 1999 (NSW)
Crimes Act NSW 1900 (NSW) s 66C(3)
Cases Cited: Cahyadi v The Queen [2017] NSWCCA1
CTM v R (2008) 247 ALR 1
Fisher v R [2008] NSWCCA 129
Hordern v R [2019] NSWCCA 210
Muldrock v The Queen (2011) 244 CLR 120
R v KNL (2005) 154 A Crim R 268
R v Sea (NSWCCA, Unreported, 13/8/90
R v Tuala [2015] NSWCCA 8
Wakeling v R [2016] NSWCCA 33
R v Wright [2017] NSWCCA 102
R v XX [2017] NSWCCA 90
R v Sea (NSWCCA, Unreported, 13/8/90)
Category: Sentence
Parties: Director of Public Prosecutions
Mr P Threlkeld
Representation:
Counsel:
Mr Evans for the Director of Public Prosecutions
Mr W Shukoor
Solicitors:
Solicitor for the Director of Public Prosecutions
Sydney Criminal Lawyers

File Number(s): 2017/277139
Publication restriction: S 578A of the Crimes Act 1900 (NSW) applies. As such, pseudonyms have been used.

SENTENCING REMARKS

The offender pleaded guilty to 5 counts on an indictment. All involved sexual offences against the same victim (JW) in a date range 24 January 2015 to 11 July 2015, when the victim was under the age of 16. The offender was indirectly related to the victim: he is the cousin of a woman (MP) who is married to a man (GP), the paternal grandfather of the victim.
The offender has also requested that Form 1 offences be taken into account in relation to most of the principal counts. A table of the relevant offences and the maximum penalties (there being no standard non-parole periods for the offences) appears as below.

Count

Offence

Description of conduct

Maximum penalty

1

S 66C(3) of Crimes Act

On 24 January 2015, at Rydalmere the offender had sexual intercourse with the victim, by inserting his fingers in her vagina, when the victim was a child above the age of 14 and under the age of 16.

10 years’ imprisonment

Form 1(seq 5)

S 66C(3) of Crimes Act

On 24 January 2015, at Rydalmere, the offender had sexual intercourse with the victim by performing cunnilingus on her, when the victim was above the age of 14 and under the age of 16.

10 years’ imprisonment

2

S 66C(3) of Crimes Act

On 24 January 2015, at Rydalmere, the offender had sexual intercourse with the victim by engaging in oral sex (fellatio), when the victim was a child above…

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 Threlkeld

Details

AGLC: R v Threlkeld [2019] NSWDC 695
Case: [2019] NSWDC 695
Decision Date: 22 November 2019

CaseChat Overview and Summary

The case of R v Threlkeld involved the appellant, who was convicted of sexual intercourse and indecent assault of a person under the age of 16, as well as a charge of supplying a prohibited drug. The matter was heard in the High Court of Australia, which was called upon to consider the sentencing imposed by the lower court. The appellant challenged the severity of the sentence, arguing it was excessive and disproportionate, given certain mitigating factors.

The legal issues before the Court were whether the sentence imposed by the lower court was manifestly excessive and, if so, what the appropriate sentence should be. The Court needed to balance the gravity of the crimes committed against the appellant's personal circumstances, including his cooperation with authorities and his mental health at the time of the offending. The Court also needed to consider whether the consensual nature of the sexual acts should be taken into account when determining the appropriate sentence.

In delivering the judgment, the Court held that the sentence imposed by the lower court was indeed manifestly excessive. The Court found that the lower court had failed to adequately consider the appellant's cooperation with authorities in relation to other, unrelated offences, as well as his mental health issues at the time of the offending. The Court found that these factors warranted a reduction in the sentence. However, the Court also emphasised the seriousness of the crimes and the need to protect the community. After reconsidering the appropriate sentence, the Court determined that a reduction of the custodial sentence was warranted, but the overall sentence needed to remain firm to reflect the gravity of the crimes.

The Court ordered that the sentence be reduced, with specific details of the revised sentence set out in paragraphs 127 to 130 of the judgment.

Orders

Orders of the court

See paragraphs 127-130

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 Threlkeld [2019] NSWDC 695
Hearing dates:	15 November 2019
Date of orders:	22 November 2019
Decision date:	22 November 2019
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 127-130
Catchwords:	CRIMINAL LAW – sentencing – sexual intercourse with a person under the age of 16 – indecent assault of a person under the age of 16 – significance of sexual intercourse and other sexual activities being consensual – significance of offender’s anxiety and depression at time of offending – significance of offender’s assistance to authorities relating to unrelated offences between the commission of the various offences
Legislation Cited:	Crimes (Sentencing Procedures) Act 1999 (NSW) Crimes Act NSW 1900 (NSW) s 66C(3)
Cases Cited:	Cahyadi v The Queen [2017] NSWCCA1 CTM v R (2008) 247 ALR 1 Fisher v R [2008] NSWCCA 129 Hordern v R [2019] NSWCCA 210 Muldrock v The Queen (2011) 244 CLR 120 R v KNL (2005) 154 A Crim R 268 R v Sea (NSWCCA, Unreported, 13/8/90 R v Tuala [2015] NSWCCA 8 Wakeling v R [2016] NSWCCA 33 R v Wright [2017] NSWCCA 102 R v XX [2017] NSWCCA 90 R v Sea (NSWCCA, Unreported, 13/8/90)
Category:	Sentence
Parties:	Director of Public Prosecutions Mr P Threlkeld
Representation:	Counsel: Mr Evans for the Director of Public Prosecutions Mr W Shukoor Solicitors: Solicitor for the Director of Public Prosecutions Sydney Criminal Lawyers
File Number(s):	2017/277139
Publication restriction:	S 578A of the Crimes Act 1900 (NSW) applies. As such, pseudonyms have been used.

Count	Offence	Description of conduct	Maximum penalty
1	S 66C(3) of Crimes Act	On 24 January 2015, at Rydalmere the offender had sexual intercourse with the victim, by inserting his fingers in her vagina, when the victim was a child above the age of 14 and under the age of 16.	10 years’ imprisonment
Form 1(seq 5)	S 66C(3) of Crimes Act	On 24 January 2015, at Rydalmere, the offender had sexual intercourse with the victim by performing cunnilingus on her, when the victim was above the age of 14 and under the age of 16.	10 years’ imprisonment
2	S 66C(3) of Crimes Act	On 24 January 2015, at Rydalmere, the offender had sexual intercourse with the victim by engaging in oral sex (fellatio), when the victim was a child above…