R v TS - [2010] NSWDC 111

CITATION: R v TS [2010] NSWDC 111

JUDGMENT DATE:
28 January 2010

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Aggravated sexual assault- domestic violence related (Charge sequence 1):
Sentence minimum term 3 years and 9 months. Balance of term of 3 years, 4 months and 15 days.
Aggravated sexual assault- domestic violence related (Charge sequence 12):
Sentence 4 years minimum term. Balance of term of 3 years and 6 months 6.
Intentionally or recklessly damage property by fire/explosive (Charge Sequence 20):
Sentence to fixed term of 6 months imprisonment.
All sentences to be served concurrently

CATCHWORDS: Criminal Law - Sentence - Aggravated sexual intercourse without consent (x2) Malicious Damage by Fire - 3 further sexual intercourse without consent taken into account on Form 1 - victim ex-partner and mother of his three children - domestic violence offence - separated 3 months - visits victim's home - use of physcohological violence through threats and menace - cutting clothing with scissors - flicking inflamible material upon naken victim - knife to throat - fellatio - penile vaginal intercourse to ejuculation - further fellation (Form 1) further penile vaginal intercouse (x2) (Form 1 - no protection during intercourse - soft tissue injury to body and tenderness to vaginal region -fires lit in rear yard and waste bin in bedroom - effected by alcohol and amphetamines at time of offending - long term poly drug abuser

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Gladue [1999] 1SCR 688 [80]
R v Cuthbert (1967) 2 NSWR 329
R v Rushby [1977] NSWLR 597
R v Hayes [1984] 1 NSWLR 740
R v Gebrail unreported NSWCCA 18/Nov (1994)
R v Hartikainen unreported NSWCCA 8 June 1993
R v Pay (1999) NSWCCA 40 [7]
The Attorney General Application under S 37 Crimes (Sentence Procedure Act) 1999 (2004) 61 NSWLR 38
R v Way (2004) 60 NSWLR 168

PARTIES: Regina
TS

FILE NUMBER(S): 2009/5054

COUNSEL: Defence: L Gray

SOLICITORS: Crown: Ms A Bhat - Office of DPP, Gosford

JUDGMENT

1. This court, as are others, becomes daily more concerned with the increasing percentage of Aboriginal men and women who are in custody. By the time an offender stands before a court the options open to the court are limited and constrained by legal principles. Such scope as there is in sentencing to avoid incarceration should be pursued so long as proper legal sentencing principles are respected. But before dramatic reductions in Aboriginal incarceration rates can be achieved there must be dramatic changes made in Aboriginal communities and daily living patterns that bring about a reduction in the need to call the police and invoke the procedures of the criminal justice system.

2. So much of domestic violence in Aboriginal household is linked to mammoth cannabis and amphetamine abuse, alcohol and past parental example to the modern day abuser. Once unleashed, the violence exhibited is so grossly disproportionate to the claimed domestic insult or injury said to be responsible for the outburst. So it is…

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 TS

Details

AGLC: R v Ts [2010] NSWDC 111
Case: [2010] NSWDC 111
Decision Date: 28 January 2010

CaseChat Overview and Summary

In the case of R v TS, the defendant was charged with multiple offences of aggravated sexual intercourse without consent against the mother of his three children, as well as malicious damage by fire. The victim and the defendant had been in a relationship but had separated three months prior to the incident. The defendant visited the victim's home, engaged in acts of psychological violence, and committed sexual offences against her. He also set fire to property in the victim's rear yard and bedroom. The defendant was under the influence of alcohol and amphetamines at the time of the offending and had a history of poly drug abuse.

The legal issues before the court were whether the sexual offences were aggravated due to the domestic violence context, and whether the property damage offence was sufficiently severe to warrant separate sentencing. The court also had to consider the appropriate sentence for each offence, taking into account the defendant's background and the circumstances of the offending.

The court found that the sexual offences were indeed aggravated due to the domestic violence context, as the defendant had a history of controlling and abusive behaviour towards the victim. The court further held that the property damage offence warranted separate sentencing, given the potential risk to human life and property. The court considered the defendant's background, including his drug abuse and the influence of drugs at the time of the offending, in determining the appropriate sentences. The court imposed a minimum term of 3 years and 9 months for the first aggravated sexual assault, 4 years minimum term for the second aggravated sexual assault, and a fixed term of 6 months imprisonment for the malicious damage by fire. All sentences were to be served concurrently.

The court ordered that the defendant serve a minimum term of 3 years and 9 months for the first aggravated sexual assault, a minimum term of 4 years for the second aggravated sexual assault, and a fixed term of 6 months for the malicious damage by fire. All sentences were to be served concurrently, taking into account the defendant's background and the circumstances of the offending.

Orders

Orders of the court

Aggravated sexual assault- domestic violence related (Charge sequence 1):

Sentence minimum term 3 years and 9 months. Balance of term of 3 years, 4 months and 15 days.

Aggravated sexual assault- domestic violence related (Charge sequence 12):

Sentence 4 years minimum term. Balance of term of 3 years and 6 months 6.

Intentionally or recklessly damage property by fire/explosive (Charge Sequence 20):

Sentence to fixed term of 6 months imprisonment.

All sentences to be served concurrently

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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CITATION:	R v TS [2010] NSWDC 111
JUDGMENT DATE:	28 January 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Aggravated sexual assault- domestic violence related (Charge sequence 1): Sentence minimum term 3 years and 9 months. Balance of term of 3 years, 4 months and 15 days. Aggravated sexual assault- domestic violence related (Charge sequence 12): Sentence 4 years minimum term. Balance of term of 3 years and 6 months 6. Intentionally or recklessly damage property by fire/explosive (Charge Sequence 20): Sentence to fixed term of 6 months imprisonment. All sentences to be served concurrently
CATCHWORDS:	Criminal Law - Sentence - Aggravated sexual intercourse without consent (x2) Malicious Damage by Fire - 3 further sexual intercourse without consent taken into account on Form 1 - victim ex-partner and mother of his three children - domestic violence offence - separated 3 months - visits victim's home - use of physcohological violence through threats and menace - cutting clothing with scissors - flicking inflamible material upon naken victim - knife to throat - fellatio - penile vaginal intercourse to ejuculation - further fellation (Form 1) further penile vaginal intercouse (x2) (Form 1 - no protection during intercourse - soft tissue injury to body and tenderness to vaginal region -fires lit in rear yard and waste bin in bedroom - effected by alcohol and amphetamines at time of offending - long term poly drug abuser
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Gladue [1999] 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Gebrail unreported NSWCCA 18/Nov (1994) R v Hartikainen unreported NSWCCA 8 June 1993 R v Pay (1999) NSWCCA 40 [7] The Attorney General Application under S 37 Crimes (Sentence Procedure Act) 1999 (2004) 61 NSWLR 38 R v Way (2004) 60 NSWLR 168
PARTIES:	Regina TS
FILE NUMBER(S):	2009/5054
COUNSEL:	Defence: L Gray
SOLICITORS:	Crown: Ms A Bhat - Office of DPP, Gosford