R v XY - [2011] NSWDC 18

District Court

New South Wales

Medium Neutral Citation: R v XY [2011] NSWDC 18
Hearing dates: 18/2/11; 4/3/11
Decision date: 10 March 2011
Jurisdiction: Criminal
Before: Judge FINNANE QC DCJ
Decision:
The sentence then is:
I sentence the offender to serve a non-parole period of 2 years imprisonment. The sentence commences from 4 th March 2011 and the non-parole period expires on 3 rd March 2013. I recommend that he be released to parole on that day.
The balance of the term goes from 4 th March 2013 till 3 rd March 2014. He is to be released from all consequences of the sentence on that day.
I also recommend that he be given access to programmes on sexual offending and alcohol abuse whilst he is in custody and when he is on parole.
I recommend that he be classified to a minimum security classification as soon as possible and that he be considered for work release as soon as possible.
I direct that these remarks on sentence together with the psychological reports of Dr Katie Seidler of 11 th November 2009 and 14 th February 2010 (part of exhibit 2) be sent to the Classifications Committee of the Department of Corrective Services.

Catchwords: CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offence - breach of trust - consequences of offence or impact on victim - relevant factors - nature and circumstances of offender - response to charges - contrition - plea of guilty - offender soldier in Australian Army -
Legislation Cited: Pre-Trial Diversion of Offenders Act 1985 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Case Conferencing Trial Act 2008 (NSW)
Cases Cited: R v Dyers [2000] NSWCCA 335
R v Giddy [2003] NSWCCA 46
R v Silcock [2004] NSWCCA 442
R v Way 60 NSWLR 168
Category: Principal judgment
Parties: Regina (Crown)
XY (Offender)
Representation: Director of Public Prosecutions
J P Lo Schiavo (counsel for the offender XY)

File Number(s): 2009/00047662
Publication restriction: Suppression order - complainant 14-year-old daughter of offender.

Judgment

The offender is a soldier in the Australian Army, holding the rank of corporal. The victim is his 14-year-old daughter.

On 7 March 2009, he indecently assaulted his 14-year-old daughter. He did not cause her any physical injuries and he did not in touch her on her breasts or in her vaginal area, nor did he kiss her, but he caused her very considerable distress and to this day she is upset, embarrassed and ashamed of what happened, although she had nothing to do with the assault, nor did she in any way agree with it. Indeed, she rejected her father's advances, kicked and struggled and managed to get him off her.

At the time he was very intoxicated. He had been at a club drinking alcohol until an employee of the club refused him further service. Because of the amount of alcohol he drank, he cannot remember what he did but he accepts and has always…

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 [2011] NSWDC 18
Case: [2011] NSWDC 18
Decision Date: 10 March 2011

CaseChat Overview and Summary

The case of R v XY involved a defendant who pleaded guilty to a breach of trust and other related charges. The defendant, a soldier in the Australian Army, stood accused of serious offences that had a significant impact on the victim. The case was heard in the relevant criminal court, which was tasked with determining an appropriate sentence for the defendant.

The court was required to consider various legal issues, including the nature and circumstances of the offence, the breach of trust involved, and the consequences of the offence on the victim. Additionally, the court had to assess the relevant factors pertaining to the offender, such as their response to the charges and their level of contrition, which was demonstrated through their guilty plea.

In delivering the sentence, the court carefully weighed the relevant factors. The breach of trust and the impact on the victim were significant considerations. The court also took into account the defendant’s guilty plea and their status as a soldier in the Australian Army. After thorough deliberation, the court determined that the appropriate sentence involved a non-parole period of two years, commencing from 4 March 2011, with the non-parole period expiring on 3 March 2013. The balance of the term would extend until 3 March 2014. The court recommended that the defendant be released to parole on 3 March 2013, subject to specific conditions including participation in programs addressing sexual offending and alcohol abuse. Furthermore, the court recommended that the defendant be classified to a minimum security classification as soon as possible and considered for work release. The court also directed that the remarks on sentence and relevant psychological reports be sent to the Classifications Committee of the Department of Corrective Services.

Orders

Orders of the court

The sentence then is:

I sentence the offender to serve a non-parole period of 2 years imprisonment. The sentence commences from 4 th March 2011 and the non-parole period expires on 3 rd March 2013. I recommend that he be released to parole on that day.

The balance of the term goes from 4 th March 2013 till 3 rd March 2014. He is to be released from all consequences of the sentence on that day.

I also recommend that he be given access to programmes on sexual offending and alcohol abuse whilst he is in custody and when he is on parole.

I recommend that he be classified to a minimum security classification as soon as possible and that he be considered for work release as soon as possible.

I direct that these remarks on sentence together with the psychological reports of Dr Katie Seidler of 11 th November 2009 and 14 th February 2010 (part of exhibit 2) be sent to the Classifications Committee of the Department of Corrective Services.

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 [2011] NSWDC 18
Hearing dates:	18/2/11; 4/3/11
Decision date:	10 March 2011
Jurisdiction:	Criminal
Before:	Judge FINNANE QC DCJ
Decision:	The sentence then is: I sentence the offender to serve a non-parole period of 2 years imprisonment. The sentence commences from 4 th March 2011 and the non-parole period expires on 3 rd March 2013. I recommend that he be released to parole on that day. The balance of the term goes from 4 th March 2013 till 3 rd March 2014. He is to be released from all consequences of the sentence on that day. I also recommend that he be given access to programmes on sexual offending and alcohol abuse whilst he is in custody and when he is on parole. I recommend that he be classified to a minimum security classification as soon as possible and that he be considered for work release as soon as possible. I direct that these remarks on sentence together with the psychological reports of Dr Katie Seidler of 11 th November 2009 and 14 th February 2010 (part of exhibit 2) be sent to the Classifications Committee of the Department of Corrective Services.
Catchwords:	CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offence - breach of trust - consequences of offence or impact on victim - relevant factors - nature and circumstances of offender - response to charges - contrition - plea of guilty - offender soldier in Australian Army -
Legislation Cited:	Pre-Trial Diversion of Offenders Act 1985 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Case Conferencing Trial Act 2008 (NSW)
Cases Cited:	R v Dyers [2000] NSWCCA 335 R v Giddy [2003] NSWCCA 46 R v Silcock [2004] NSWCCA 442 R v Way 60 NSWLR 168
Category:	Principal judgment
Parties:	Regina (Crown) XY (Offender)
Representation:	Director of Public Prosecutions J P Lo Schiavo (counsel for the offender XY)
File Number(s):	2009/00047662
Publication restriction:	Suppression order - complainant 14-year-old daughter of offender.