R v XY - [2020] NSWDC 288

District Court

New South Wales

Medium Neutral Citation: R v XY [2020] NSWDC 288
Hearing dates: 29 November 2019, 2 December 2019, 3 December 2019
Decision date: 21 February 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to a total term of imprisonment of 7 years; non-parole period 4 years.

Catchwords: CRIME – sentence after trial – sexual intercourse with child under 10 years – indecent assault child under 16 years – under authority -offences occurred during one incident – no prior offending – prisoner of good character but for the offending – special circumstances – principles of totality.
Legislation Cited: Crimes Act 1900 s 61M(2); s 66A
Crimes (Sentencing Procedure) Act
Cases Cited: Holder & Anor (1983) 3 NSWLR 245
Johnson v R (2004) 78 ALJR 16
Mill v R (1988) 166 CLR 59
Pearce v R (1998) 194 CLR 610
R v Tuala [2015] NSWCCA 8
R v XX (2009) 195 A Crim R 38
R v Youkhana [2004] NSWCA 412
Suleman v R [2009] NSWCCA 70
Category: Sentence
Parties: Regina (Crown)
XY (offender)
Representation: Counsel:
Mr C Bailey (Crown)
Mr P Rowe (Defendant)

File Number(s): 2018/00036967
Publication restriction: No publication of the names of the offender or the victim

Judgment

XY appears for sentence today in relation to two offences for which he was found guilty by a jury at the Orange District Court on 3 December 2019. The two offences are firstly that he between 9 February 2012 and 18 February 2012 at Orange in the State of New South Wales, did have sexual intercourse with the complainant whose name is not for publication, a child then under the age of ten years, namely, 9 years. This is an offence contrary to s 66A Crimes Act 1900 and carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 15 years imprisonment.
The second count on the indictment alleged that the prisoner did, between 9 February 2012 and 18 February 2012 at Orange in the State of New South Wales assault the victim and at the time of the assault committed an act of indecency upon her, she then being a child under the age of 16 years, namely, nine years. This offence contrary to s 61M(2) Crimes Act at the time, carried a maximum penalty of ten years imprisonment with a standard non-parole period of eight years imprisonment.
The prisoner has been in custody since the date of the verdict, 3 December 2019. There was no other pre-sentence custody. The sentences that I impose will effectively commence from the date he came into custody, that is, 3 December 2019. The proceedings were to be transmitted to Orange so that the victim could at least hear them, however, unfortunately technical difficulties prevented that happening.
The facts of the matter are set out in a statement of facts drawn from the evidence of the victim at the trial. I should point out in relation to the trial that was conducted that the prisoner…

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 XY

Details

AGLC: R v XY [2020] NSWDC 288
Case: [2020] NSWDC 288
Decision Date: 21 February 2020

CaseChat Overview and Summary

The appellant, XY, was convicted of engaging in sexual intercourse with a child under the age of 10 and of indecently assaulting a child under the age of 16. The crimes occurred during a single incident, and there was no prior offending history. The court was required to consider the principles of totality, the special circumstances, and the appellant's character in determining the appropriate sentence. The appellant had been a prisoner of good character, but for these offences. The court considered the severity of the crimes, the impact on the victims, and the need for deterrence and rehabilitation.

The primary legal issue before the court was to determine the appropriate sentence for the appellant, considering the totality principle, the special circumstances of the case, and the appellant's otherwise good character. The court had to balance the need for punishment and deterrence with the principles of proportionality and individualisation. The court also needed to consider the impact of the crimes on the victims and the need for rehabilitation.

The court held that the offences were of a high degree of culpability, given the age of the victims and the nature of the crimes. The court found that the principles of totality and special circumstances applied, and that a sentence of imprisonment was appropriate. The court considered the appellant's good character, but found that this did not outweigh the seriousness of the offences. The court ultimately sentenced the appellant to a total term of imprisonment of 7 years, with a non-parole period of 4 years. The court found that this sentence was proportionate to the crimes, and that it would adequately address the needs of deterrence, retribution, and rehabilitation.

The court made no further orders.

Orders

Orders of the court

Sentenced to a total term of imprisonment of 7 years; non-parole period 4 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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Medium Neutral Citation:	R v XY [2020] NSWDC 288
Hearing dates:	29 November 2019, 2 December 2019, 3 December 2019
Decision date:	21 February 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to a total term of imprisonment of 7 years; non-parole period 4 years.
Catchwords:	CRIME – sentence after trial – sexual intercourse with child under 10 years – indecent assault child under 16 years – under authority -offences occurred during one incident – no prior offending – prisoner of good character but for the offending – special circumstances – principles of totality.
Legislation Cited:	Crimes Act 1900 s 61M(2); s 66A Crimes (Sentencing Procedure) Act
Cases Cited:	Holder & Anor (1983) 3 NSWLR 245 Johnson v R (2004) 78 ALJR 16 Mill v R (1988) 166 CLR 59 Pearce v R (1998) 194 CLR 610 R v Tuala [2015] NSWCCA 8 R v XX (2009) 195 A Crim R 38 R v Youkhana [2004] NSWCA 412 Suleman v R [2009] NSWCCA 70
Category:	Sentence
Parties:	Regina (Crown) XY (offender)
Representation:	Counsel: Mr C Bailey (Crown) Mr P Rowe (Defendant)
File Number(s):	2018/00036967
Publication restriction:	No publication of the names of the offender or the victim