R v Young - [2022] NSWDC 684

District Court

New South Wales

Medium Neutral Citation: R v Young [2022] NSWDC 684
Hearing dates: 12 December 2022
Date of orders: 17 February 2022
Decision date: 17 February 2022
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full time custodial sentence. For orders see [92]

Catchwords:
SENTENCE – maintain unlawful sexual relationship with child – s66EA of the Crimes Act 1900.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Burr v R (2020) 285 A Crim R 504; [2020] NSWCCA 282
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Magnuson v R [2013] NSWCCA 50
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
RJT v R (2021) 218 A Crim R 490; [2012] NSWCCA 280
SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19
Xerri v R (2021) A Crim R 355); [2021] NSWCCA 268

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
John Robert Young (Offender)
Representation: Mr Carnell (Crown)
Ms McLaughlin (Offender)

File Number(s): 21/1220022
Publication restriction: Section 578A of the Crimes Act 1900 and s15A of the Children (Criminal Proceedings) Act 1987 apply so as to prohibit the publication of any material which may identify or is likely to lead to the identification of the victim in the proceedings.

REMARKS ON SENTENCE

The offender is to be sentenced in respect of an offence pursuant to s66EA of the Crimes Act 1900 that he between 1 January 1992 and 31 December 2005 at M, SH, LM, W and W in the State of New South Wales, did maintain an unlawful sexual relationship with PW, who was then a child under the age of 16, namely 4 - 14 years of age, in which the Accused engaged in the following two or more unlawful sexual acts.
The sexual acts were particularised as exposing his penis to PW and masturbating himself in front of PW; directing the victim to masturbate his penis; touching PW’s genitals; performing cunnilingus on PW; directing PW to perform fellatio on him; penetrating PW’s vagina with a spoon; penetrating PW’s vagina with his penis and rubbing his penis on PW’s genitalia.
The offender presented himself to Belmont Police Station voluntarily on 2 May 2021 where he made admissions to the offending. The offender entered a plea of guilty in the Local Court at the earliest available opportunity. He was born on 13 January 1961 and was aged between 31 and 40 years at the time of offending. He is now 61 years old. The offender has been in custody since 2 May 2021, referrable solely to this offence.

The sentence hearing

A sentence hearing took place on 12 December 2022. The Crown sentence summary bundle became Exhibit A and it included a statement of agreed facts which may be summarised as follows.
The victim PW was born in March 1987 to her mother JY and her natural father is unknown to her. The victim has…

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 Young

Details

AGLC: R v Young [2022] NSWDC 684
Case: [2022] NSWDC 684
Decision Date: 17 February 2022

CaseChat Overview and Summary

The defendant, Young, was convicted of maintaining an unlawful sexual relationship with a child under the age of 16 years, contrary to section 66EA of the Crimes Act 1900. The case came before the court for the purpose of sentencing. The prosecution sought a full-time custodial sentence due to the severity of the offence and its impact on the victim. The defence argued for a non-custodial sentence, citing the defendant's background, remorse, and potential for rehabilitation. The court was required to weigh these factors in determining an appropriate sentence.

The court considered the gravity of the offence, the defendant's lack of remorse, and the need to protect the community and deter similar offences. The court also examined the principles of sentencing outlined in the Crimes (Sentencing Procedure) Act 1999, including the need for punishment and rehabilitation. The court acknowledged the defendant's background and personal circumstances but ultimately found that a custodial sentence was necessary to achieve the objectives of sentencing.

After considering all the evidence and arguments, the court imposed a full-time custodial sentence on the defendant. The court found that the offence was of significant gravity and that a non-custodial sentence would not adequately address the need for punishment, deterrence, and community protection. The court also noted that the defendant had shown a lack of remorse and that a custodial sentence was necessary to achieve the objectives of sentencing. The court ordered that the defendant be sentenced to a term of imprisonment with specific parole conditions to ensure the safety of the community and the protection of potential victims.

Orders

Orders of the court

Full time custodial sentence. For orders see [92]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Young [2022] NSWDC 684
Hearing dates:	12 December 2022
Date of orders:	17 February 2022
Decision date:	17 February 2022
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For orders see [92]
Catchwords:	SENTENCE – maintain unlawful sexual relationship with child – s66EA of the Crimes Act 1900.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Burr v R (2020) 285 A Crim R 504; [2020] NSWCCA 282 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Magnuson v R [2013] NSWCCA 50 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 RJT v R (2021) 218 A Crim R 490; [2012] NSWCCA 280 SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19 Xerri v R (2021) A Crim R 355); [2021] NSWCCA 268
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) John Robert Young (Offender)
Representation:	Mr Carnell (Crown) Ms McLaughlin (Offender)
File Number(s):	21/1220022
Publication restriction:	Section 578A of the Crimes Act 1900 and s15A of the Children (Criminal Proceedings) Act 1987 apply so as to prohibit the publication of any material which may identify or is likely to lead to the identification of the victim in the proceedings.