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
[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.
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Details
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