R v Viridian - [2014] NSWDC 265

District Court

New South Wales

Medium Neutral Citation: R v Viridian [2014] NSWDC 265
Hearing dates: 13 October 2014
Decision date: 14 October 2014
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
(1) For the offence of sexual intercourse with a person under 10, a sentence of 22 months imprisonment, wholly suspended on condition that the offender enter into a good behaviour bond.
(2) Order directing that the whole of the sentence of imprisonment be served as a juvenile offender.
(3) It is noted that under s 14 of the Children (Criminal Proceedings) Act, power to proceed to or record a conviction not exercised.
Catchwords: CRIMINAL LAW - Sentence - particular offence - sexual intercourse with a person under 10 - digital penetration - 6 year old victim - victim a family friend of offender - relevant factors - no prior criminality - 14 years old at time of offence - response to charge - remorse - recognition of impact of behaviour - apologised to victim and victim’s mother - plea of guilty at earliest opportunity - 25% discount - inappropriate access to pornography - responding well to counselling and treatment - unlikely to re-offend - supportive family - extra-curial punishment - sentencing orders - juvenile sentenced according to law - sentencing procedure - no conviction recorded - victim impact statement
Legislation Cited: Crimes Act 1900 (NSW), s 66A(1)
Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 10, 14, 19(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 12(1)
Category: Sentence
Parties: Regina (Crown)
Angus Viridian (offender)
Representation:
Counsel:
Mr X (offender)
Solicitors:
NSW Director of Public Prosecutions (Crown)

File Number(s): 2014/104569001
Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child offender. Identifying information has been removed from this version of the remarks to comply with the statute and the offender's name has been replaced with a pseudonym (which is a colour).

Judgment

A boy barely into his teenage years and driven by curiosity sexually assaulted a six year old girl. The assault was very serious. He penetrated her vagina with his finger. The girl - commendably and sensibly - immediately reported what had happened to her parents. The boy owned up straightaway.
The boy soon realised how serious his behaviour had been. He was arrested and charged with a crime. It was no ordinary crime. The crime is called sexual intercourse with a person under ten. It is made into a crime by s 66A(1) of the Crimes Act 1900, a law enacted by the Parliament of New South Wales.
Parliament regards that crime as so serious that it has fixed to it a maximum penalty of twenty-five years imprisonment. Not only that, Parliament has specified that a judge should take into account in sentencing a person for that offence - as a guide - that normally a person would serve a minimum…

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 Viridian

Details

AGLC: R v Viridian [2014] NSWDC 265
Case: [2014] NSWDC 265
Decision Date: 14 October 2014

CaseChat Overview and Summary

In the case of R v Viridian, the defendant faced charges related to sexual intercourse with a person under 10 years of age, specifically involving digital penetration. The victim, a family friend of the offender, was only 6 years old at the time of the incident. The case was heard in a relevant Australian court where the primary focus was on determining an appropriate sentence considering the unique circumstances and statutory provisions governing juvenile offenders.

The court was tasked with deciding the appropriate sentencing for this serious offence, considering various factors including the offender's age at the time of the offence, lack of prior criminal history, immediate expression of remorse, and engagement in counselling and treatment. The court also took into account the victim impact statement, the offender's apology to the victim and her mother, and the supportive environment provided by the offender's family. The statutory framework under the Children (Criminal Proceedings) Act was pivotal in guiding the court’s sentencing decision.

Upon evaluating these factors, the court imposed a sentence of 22 months imprisonment, which was wholly suspended on the condition that the offender enter into a good behaviour bond. The sentence was to be served as a juvenile offender, reflecting the court’s intent to rehabilitate rather than punish excessively. Additionally, under section 14 of the Children (Criminal Proceedings) Act, the court exercised its discretion not to proceed with or record a conviction for this offence, thus acknowledging the juvenile nature of the offender and the potential for rehabilitation.

The court's final orders included the aforementioned suspended sentence and the direction that the sentence be served as a juvenile. Furthermore, it was noted that no conviction was recorded for the offence, aligning with the legislative intent to provide a second chance to young offenders under certain conditions.

Orders

Orders of the court

(1) For the offence of sexual intercourse with a person under 10, a sentence of 22 months imprisonment, wholly suspended on condition that the offender enter into a good behaviour bond.

(2) Order directing that the whole of the sentence of imprisonment be served as a juvenile offender.

(3) It is noted that under s 14 of the Children (Criminal Proceedings) Act, power to proceed to or record a conviction not exercised.

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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Medium Neutral Citation:	R v Viridian [2014] NSWDC 265
Hearing dates:	13 October 2014
Decision date:	14 October 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	(1) For the offence of sexual intercourse with a person under 10, a sentence of 22 months imprisonment, wholly suspended on condition that the offender enter into a good behaviour bond. (2) Order directing that the whole of the sentence of imprisonment be served as a juvenile offender. (3) It is noted that under s 14 of the Children (Criminal Proceedings) Act, power to proceed to or record a conviction not exercised.
Catchwords:	CRIMINAL LAW - Sentence - particular offence - sexual intercourse with a person under 10 - digital penetration - 6 year old victim - victim a family friend of offender - relevant factors - no prior criminality - 14 years old at time of offence - response to charge - remorse - recognition of impact of behaviour - apologised to victim and victim’s mother - plea of guilty at earliest opportunity - 25% discount - inappropriate access to pornography - responding well to counselling and treatment - unlikely to re-offend - supportive family - extra-curial punishment - sentencing orders - juvenile sentenced according to law - sentencing procedure - no conviction recorded - victim impact statement
Legislation Cited:	Crimes Act 1900 (NSW), s 66A(1) Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 10, 14, 19(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 12(1)
Category:	Sentence
Parties:	Regina (Crown) Angus Viridian (offender)
Representation:	Counsel: Mr X (offender) Solicitors: NSW Director of Public Prosecutions (Crown)
File Number(s):	2014/104569001
Publication restriction:	Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child offender. Identifying information has been removed from this version of the remarks to comply with the statute and the offender's name has been replaced with a pseudonym (which is a colour).