R v Van Der Baan - [2010] NSWDC 25

CITATION: R v Van Der Baan [2010] NSWDC 25

HEARING DATE(S): 11/09/2009
30/10/2009

JUDGMENT DATE:
5 February 2010

JURISDICTION: Criminal

JUDGMENT OF: King SC DCJ

DECISION: Convicted on each count.
Sentenced to terms of imprisonment as follows:
Robbery: Sentenced to a fixed term of imprisonment for 18 months to commence on 23/5/07 and to expire on 22/11/08.
Aggavated sex assault x 3 (BH): On each count, sentenced to a fixed term of imprisonment for 6 years and 9 months to commence on 23/11/07 and to expire on 22/8/14.
Sentences to be served concurrently.
Aggravated sex assault x3 (SP): On each count, sentenced to a period of imprisonment for 12 years, comprising a NPP of 9 years, to commence on 23/8/12 and to expire on 22/8/21, and a balance of term to commence on 23/8/21 and to expire on 22/8/24.
Eligible for release to parole on 22/8/21.
Sentences to served concurrently with each other and partially concurrently with the sentence imposed above.

CATCHWORDS: CRIMINAL LAW - Sentence - particular offences - offences against the person - sexual offences - rape and sexual assault - prior similar offences - circumstances of aggravation - robbery with an offensive weapon

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

CASES CITED: R v Hibberd [2009] NSWCCA 20
Ibbs v The Queen (1987) 163 CLR 447
R v Allpass (1994) 72 A Crim R 561
R v Youkhana [2004] NSWCCA 412
R v Qutami [2001] NSWCCA 353
R v Woodgate [2009] NSWCCA 137
Veen v R (No 2) (1988) 164 CLR 465
R v MJR (2002) 54 NSWLR 368
R v Shore (1992) 66 A Crim R 37
R v Moon (2000) 117 A Crim R 497
Thomson & Houlton [2000] 49 NSWLR 383
SGJ v R [2008] NSWCCA 258

PARTIES: Regina
Jason Van Der Baan

FILE NUMBER(S): 2009/5448; 2009/5449

COUNSEL: Ms S Harris - Crown
Mr N Vertigan - Offender

SOLICITORS: Office of the Director of Public Prosecutions
Legal Aid Commission

SENTENCE

HIS HONOUR:
The prisoner appears for sentence following pleas of guilty to seven offences. The sentence proceedings commenced on 11 September 2009, and continued on 30 October 2009, when the evidence and submissions were completed.

The seven offences comprise six offences of Aggravated Sexual Assault contrary to s 61J (1) and one offence of Robbery with an Offensive Weapon contrary to s 97 (1) of the Crimes Act 1900.

Each of the offences concerned one of two female victims. The offences were committed on two separate occasions, each occasion being in respect of one of the victims only.

The maximum penalty provided for each of the seven offences is 20 years imprisonment. As all offences were committed prior to 1 February 2003, there is no standard non-parole period applicable.

The first four offences concerned the victim BH, and included the offence of robbery with an offensive weapon, a flick knife. They were committed on 14 April 1995. The aggravating circumstance in each of the sexual assault offences was that at the…

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 Van Der Baan

Details

AGLC: R v Van Der Baan [2010] NSWDC 25
Case: [2010] NSWDC 25
Decision Date: 5 February 2010

CaseChat Overview and Summary

The accused, Van Der Baan, was convicted of robbery and multiple counts of aggravated sexual assault. The case was heard in the Supreme Court of Queensland. The legal issues before the court involved determining the appropriate sentence for the accused, taking into account the nature of the offences, the circumstances of aggravation, and the presence of prior similar offences.

The court was required to consider the severity of the offences, which included robbery with an offensive weapon and multiple instances of aggravated sexual assault. The court also had to evaluate the aggravating factors and the impact on the victims. Additionally, the court had to assess the relevance of the accused's prior similar offences in the sentencing process.

The court found that the offences were of significant severity and had a profound impact on the victims. It noted the presence of aggravating factors and the accused's history of similar offences. After weighing these factors, the court imposed a fixed term of imprisonment for the robbery offence and concurrent terms for the aggravated sexual assaults. The court also considered the need for deterrence and rehabilitation in its sentencing decision.

The final orders of the court included sentences of imprisonment for the accused. For the robbery offence, the court imposed a fixed term of 18 months. For the three counts of aggravated sexual assault, the court imposed fixed terms of 6 years and 9 months, to be served concurrently with each other and partially concurrently with the sentence for the robbery. The court also imposed a sentence of 12 years for another set of aggravated sexual assaults, with a non-parole period of 9 years. These sentences were to be served concurrently with each other and partially concurrently with the other sentences.

Orders

Orders of the court

Convicted on each count.

Sentenced to terms of imprisonment as follows:

Robbery: Sentenced to a fixed term of imprisonment for 18 months to commence on 23/5/07 and to expire on 22/11/08.

Aggavated sex assault x 3 (BH): On each count, sentenced to a fixed term of imprisonment for 6 years and 9 months to commence on 23/11/07 and to expire on 22/8/14.

Sentences to be served concurrently.

Aggravated sex assault x3 (SP): On each count, sentenced to a period of imprisonment for 12 years, comprising a NPP of 9 years, to commence on 23/8/12 and to expire on 22/8/21, and a balance of term to commence on 23/8/21 and to expire on 22/8/24.

Eligible for release to parole on 22/8/21.

Sentences to served concurrently with each other and partially concurrently with the sentence imposed above.

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 Van Der Baan [2010] NSWDC 25
HEARING DATE(S):	11/09/2009 30/10/2009
JUDGMENT DATE:	5 February 2010
JURISDICTION:	Criminal
JUDGMENT OF:	King SC DCJ
DECISION:	Convicted on each count. Sentenced to terms of imprisonment as follows: Robbery: Sentenced to a fixed term of imprisonment for 18 months to commence on 23/5/07 and to expire on 22/11/08. Aggavated sex assault x 3 (BH): On each count, sentenced to a fixed term of imprisonment for 6 years and 9 months to commence on 23/11/07 and to expire on 22/8/14. Sentences to be served concurrently. Aggravated sex assault x3 (SP): On each count, sentenced to a period of imprisonment for 12 years, comprising a NPP of 9 years, to commence on 23/8/12 and to expire on 22/8/21, and a balance of term to commence on 23/8/21 and to expire on 22/8/24. Eligible for release to parole on 22/8/21. Sentences to served concurrently with each other and partially concurrently with the sentence imposed above.
CATCHWORDS:	CRIMINAL LAW - Sentence - particular offences - offences against the person - sexual offences - rape and sexual assault - prior similar offences - circumstances of aggravation - robbery with an offensive weapon
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
CASES CITED:	R v Hibberd [2009] NSWCCA 20 Ibbs v The Queen (1987) 163 CLR 447 R v Allpass (1994) 72 A Crim R 561 R v Youkhana [2004] NSWCCA 412 R v Qutami [2001] NSWCCA 353 R v Woodgate [2009] NSWCCA 137 Veen v R (No 2) (1988) 164 CLR 465 R v MJR (2002) 54 NSWLR 368 R v Shore (1992) 66 A Crim R 37 R v Moon (2000) 117 A Crim R 497 Thomson & Houlton [2000] 49 NSWLR 383 SGJ v R [2008] NSWCCA 258
PARTIES:	Regina Jason Van Der Baan
FILE NUMBER(S):	2009/5448; 2009/5449
COUNSEL:	Ms S Harris - Crown Mr N Vertigan - Offender
SOLICITORS:	Office of the Director of Public Prosecutions Legal Aid Commission