R v Underwood (a pseudonym)

Case [2023] NSWDC 309


District Court


New South Wales

Medium Neutral Citation: R v Underwood (a pseudonym) [2023] NSWDC 309
Hearing dates: 20 April 2023, 21 June 2023 and 3 August 2023
Date of orders: 3 August 2023
Decision date: 03 August 2023
Jurisdiction:Criminal
Before: Haesler SC DCJ
Decision:

Aggregate sentence of imprisonment of 5 years 8 months imprisonment with a non-parole period of 3 years

Catchwords:

CRIME – sexual intercourse with a child knowing she was not consenting – sexual intercourse with child under 16 – sexual touching child under 16

SENTENCE – sentence after trial

SENTENCE – relevant factors on sentence – fact finding – young offender – intellectual deficits – impact of offender’s neurodevelopment disorder on objective seriousness of offending – testing of evidence from psychologist – diminished moral culpability – youth – impact of custodial sentence – special circumstances – strong pro-social supports – dangers of prison as a negative learning environment – victim impact – victim vindication – need for some retribution

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes (Amendment) Act 1924 (NSW)

Crimes (Girls' Protection) Act 1910 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

Blackman and Waltersv R [2001] NSWCCA 121

Cahyadi v R [2007] NSWCCA 1

Camilleri v R [2023] NSWCCA 106

Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Clarke-Jeffries v R [2019] NSWCCA 56

CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25

Decision restricted [2023] NSWCCA 10

DH v R [2022] NSWCCA 200

Director of Public Prosecutions (Cth)v De La Rosa [2010] NSWCCA 195

DM v R [2005] NSW CCA 181

DPP v De La Rosa [2010] NSWCCA 195

DS v R; DM v R [2022] NSWCCA 156

Hearne v R [2001] NSWCCA 37

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

Hoare v The Queen (1989) 167 CLR 348 at 354; [1989] HC 33

Hopkins v R [2004] NSWCCA 105

KAB v R [2015] NSWCCA 55

Khoury v R [2011] NSWCCA 118

KT v R [2008] NSWCCA 51

Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [192]

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Mill v The Queen (1988) 166 CLR 59 at [62] to [63]; [1988] HCA 70

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55

Nelson v R [2016] NSWCCA 130

Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54

Owen v R [2022] NSWCCA 214

Paterson v R [2021] NSWCCA 273

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

Queen v Pham (2015) 256 CLR 550: [2015] HCA 39

R v AJP [2004] NSWCCA 434; (2004)…

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AGLC
R v Underwood (a pseudonym) [2023] NSWDC 309
Case
[2023] NSWDC 309
Decision Date

CaseChat Overview and Summary

In the case of R v Underwood, the defendant was charged with sexual intercourse with a child knowing she was not consenting, sexual intercourse with a child under the age of 16, and sexual touching a child under the age of 16. The case was heard and determined by the Supreme Court of Victoria. The defendant was convicted following a trial, and the court was required to determine an appropriate sentence.

The legal issues before the court included the objective seriousness of the offending, the defendant’s intellectual deficits and neurodevelopment disorder, the diminished moral culpability of the defendant due to his youth, the impact of a custodial sentence on the defendant, the special circumstances of the case, the strong pro-social supports available to the defendant, the dangers of prison as a negative learning environment, the impact on the victim, and the need for some retribution. The court considered evidence from a psychologist regarding the defendant's neurodevelopment disorder and its impact on his culpability.

The court held that the offences were of significant gravity, given the vulnerable age of the victim and the nature of the offending. However, the court also found that the defendant's intellectual deficits and neurodevelopment disorder, coupled with his young age, significantly diminished his moral culpability. The court acknowledged the strong pro-social supports available to the defendant, and the potential dangers of a custodial sentence in terms of its impact on the defendant’s rehabilitation. The court also considered the need for some retribution and the importance of victim vindication. Ultimately, the court determined that an aggregate sentence of 5 years and 8 months imprisonment, with a non-parole period of 3 years, was appropriate.

Orders

Orders of the court

Aggregate sentence of imprisonment of 5 years 8 months imprisonment with a non-parole period of 3 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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