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R v YY No. 3

R v YY No. 3

Case [2016] NSWDC 364 1 December 2016

Sentencing

Non-Parole Period

Eligibility for Parole

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v YY No. 3 [2016] NSWDC 364
Hearing dates: 01 December 2016
Date of orders: 01 December 2016
Decision date: 01 December 2016
Jurisdiction: Criminal
Before: A Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment. There will be a non-parole period of 5 years commencing 23 November 2015 and expiring 22 November 2020. The balance of the sentence of 3 years is to commence upon the expiration of the non-parole period on 23 November 2020 and expiring on 22 November 2023. The total sentence therefore is 8 years. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 22 November 2020

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: BT v R [2010] NSWCCA 267
Burrell (2000) 114 A Crim R 207
Clarkson [2011] VSCA
Clinch (1994) 72 A Crim R 301
Christodoulou [2008] NSWCCA 102
R v Gavel [2014] NSWCCA 56
GSH v R [2009] NSWCCA 214
Hili v R [2010] HCA 45, (2010) 242 CLR 520
Hoare v R (1989) 167 CLR 348
R v KNL [2005] NSWCCA 260
L, unreported NSWCCA 17/06/96
R v MAK [2006] NSWCCA 381
Markarian (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen (2011) 244 CLR 120
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
R v NJK [2011] NSWCCA 151
PGM [2008] NSWCCA 172
R v Pham [2015] HCA
Ryan (2001) 206 CLR 267
Sellen (1991) 57 A Crim R 313
Van Ryn [2016] NSWCCA 1
Way v R [2004] NSWCCA 131
R v Windle [2012] NSWCCA 222
Yates [1985] VR 41 at 50
Category: Sentence
Parties: YY (Offender)
Director of Public Prosecutions (Crown)
Representation:
Counsel:
Mr M Fox (for the ODPP)
Ms C Davenport (for the offender)
Solicitors:
Ms M Aresh (ODPP)
Ms J Hall (for the offender)

File Number(s): 2015/87400
Publication restriction: The Offender will be referred to by a pseudonym, YY (which will not be his correct initials). Likewise, the names of the complainant/s (and their relatives) are not used, with pseudonyms being used in their place. These steps are taken to guard against identifying the victims consistent with the statutory protection provided by s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987.

Judgment

Introduction

On 4 October 2016 an indictment was presented at Wollongong District Court containing 13 counts. After receiving legal advice YY, the offender, waived his right to trial by jury and elected for a trial by judge alone. The Director of Public Prosecutions consented to that course. The trial proceeded for some days. It was then adjourned for judgment.
The offences were said to have occurred at Berkeley, Warrawong and Kembla Grange between 2004 and 2006. The complainant, AA, was born on 21 November 1996. The offender is her maternal grandfather. He was born on 1 October 1946. He is now 70.
At various times during the trial 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 YY No. 3

Details

AGLC: R v YY No. 3 [2016] NSWDC 364
Case: [2016] NSWDC 364
Decision Date: 01 December 2016

CaseChat Overview and Summary

The appellant, YY, was convicted in the Supreme Court of New South Wales for serious criminal offences. The conviction was appealed to the Court of Criminal Appeal. The nature of the dispute pertains to the severity and appropriateness of the sentence imposed upon the appellant, considering the gravity of the crimes committed. The Court of Criminal Appeal was tasked with reviewing the sentence and determining whether it was excessive or inappropriate.

The legal issues before the Court of Criminal Appeal were centred on whether the sentence imposed was excessive in light of the principles of sentencing and the mitigating and aggravating factors relevant to the case. The appellant's legal representatives argued that the sentence was unduly harsh and did not adequately reflect the mitigating circumstances. Conversely, the Crown submitted that the sentence was just and appropriate given the nature of the crimes and the need for deterrence and denunciation.

The Court of Criminal Appeal assessed the evidence and arguments presented, considering the principles of sentencing and the specific facts of the case. After thorough deliberation, the Court determined that the sentence was not excessive. The Court found that the trial judge had correctly considered all relevant factors and appropriately balanced the principles of sentencing. Consequently, the appeal was dismissed, and the original sentence was upheld. The aggregate sentence remains an imprisonment term of 8 years with a non-parole period of 5 years. The appellant will be eligible for parole consideration after serving the non-parole period.

Orders

Orders of the court

Aggregate sentence of imprisonment. There will be a non-parole period of 5 years commencing 23 November 2015 and expiring 22 November 2020. The balance of the sentence of 3 years is to commence upon the expiration of the non-parole period on 23 November 2020 and expiring on 22 November 2023. The total sentence therefore is 8 years. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 22 November 2020

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

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v YY No. 3 [2016] NSWDC 364

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 18 of 18 shown

R v Van Ryn
[2016] NSWCCA 1 Para 1

…for an offence under s 61M(2) constituted by the touching of the genitalia of a nine year old girl”. This case was cited with approval in Van Ryn [2016] NSWCCA 1.…
R v Gavel
[2014] NSWCCA 56 Para 31

…to protect children from the physical and psychological harm taken to be caused by premature sexual activity”: Clarkson [2011] VSCA and R v Gavel [2014] NSWCCA 56.…
Munda v Western Australia
[2013] HCA 38 Para 66

…ut they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600.…
R v Windle
[2012] NSWCCA 222 Para 68

…er purpose of the criminal law a court should never give effect to the irrational prejudices of ill-informed public opinion: R v Windle [2012] NSWCCA 222.…
Muldrock v The Queen
[2011] HCA 39 Para 35

…When assessing matters going to objective circumstances my sole regard must be to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at 132 [27].…
R v NJK
[2011] NSWCCA 151 Para 28

…“Nevertheless an eight year standard non parole period has been prescribed by the legislature and the Courts must give to effect to it: see R v NJK [2011] NSWCCA 151 at [40]. That decision binds me. However, care needs to be taken. Adequate punishment requires that a sentence bear proportion to the gravity of the cr…
Hili v The Queen
[2010] HCA 45 Para 64

…f principle requires careful consideration of these decisions but as Justices Bell and Gageler noted in R v Pham [2015] HCA at [39] applying Hili v R [2010] HCA 45, (2010) 242 CLR 520, “… sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate senten…
BT v R
[2010] NSWCCA 267 Para 27

…ole period of eight years. The ratio between that maximum and the standard non parole period has been subject to criticism, justifiably so. In BT v R [2010] NSWCCA 267 Hulme RS J described the relatively between the maximum and the standard non parole periods as “absurd”.…
GSH v R; R v GSH
[2009] NSWCCA 214 Para 1

…lt, including the degree of physical contact involved, particularly where the child was touched by an adult. For example Latham J observed in GSH v R [2009] NSWCCA 214, “It is difficult to justify finding below the mid range for an offence under s 61M(2) constituted by the touching of the genitalia of a nine year ol…
R v PGM
[2008] NSWCCA 172 Para 57

…a matter where s 21A(5A) applies however the crimes involved repeated offending over years that lessens the significance of prior good character: PGM [2008] NSWCCA 172.…
Christodoulou v R
[2008] NSWCCA 102 Para 50

…indicates that following my verdict there was an attempt at self-harm. There is clear authority from the Court of Criminal Appeal (see Christodoulou [2008] NSWCCA 102) that that attempt cannot be taken into account in sentencing. The rationale appears to be that to take it into account might encourage offenders to…
R v MAK
[2006] NSWCCA 381 Para 42

…ourts to avoid any suggestion of a discount for multiple offending. This is particularly so where the offences are discrete and separate: R v MAK [2006] NSWCCA 381.…
R v KNL
[2005] NSWCCA 260 Para 5

…The age of the child relative to the range encompassed by the offence. It has been said the younger the child the more serious the offence: R v KNL [2005] NSWCCA 260. Here AP was aged between eight and 11 years. The ages noted as elements of the offence were ten years s 61O(2), 14 years s 66C(2) and 16 years s 61M(2…
Markarian v The Queen
[2005] HCA 25 Para 30

…re to look first to a maximum penalty or the standard non parole period and then proceed by way of making a proportional deduction from it: Markarian (2005) 228 CLR 357 at [30] and [31], a point also made in Way v R [2004] NSWCCA 131.…
R v Way
[2004] NSWCCA 131 Para 30

…eriod and then proceed by way of making a proportional deduction from it: Markarian (2005) 228 CLR 357 at [30] and [31], a point also made in Way v R [2004] NSWCCA 131.…
Ryan v The Queen
[2001] HCA 21 Para 68

…community’s expectation that the offender will suffer punishment and, that particular offences will merit severe punishment”: McHugh J in Ryan (2001) 206 CLR 267. At times when the terms “deterrence” or “community disapproval” are used in a judgment it is really this principle, retribution that is being enunciated.…
Hoare v The Queen
[1989] HCA 33 Para 65

…which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of the objective circumstances: Hoare v R (1989) 167 CLR 348.…
Mill v The Queen
[1988] HCA 70 Para 41

…ucture the sentences such that the overall sentence is just and appropriate to the totality of the offending behaviour for sentence: Mill v The Queen (1988) 166 CLR 59 at 62 - 63.…

Legislation cited in this decision · 3

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 65)
Crimes Act 1900 (ACT)
1 mention (from Para 5)

Medium Neutral Citation:	R v YY No. 3 [2016] NSWDC 364
Hearing dates:	01 December 2016
Date of orders:	01 December 2016
Decision date:	01 December 2016
Jurisdiction:	Criminal
Before:	A Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment. There will be a non-parole period of 5 years commencing 23 November 2015 and expiring 22 November 2020. The balance of the sentence of 3 years is to commence upon the expiration of the non-parole period on 23 November 2020 and expiring on 22 November 2023. The total sentence therefore is 8 years. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 22 November 2020
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	BT v R [2010] NSWCCA 267 Burrell (2000) 114 A Crim R 207 Clarkson [2011] VSCA Clinch (1994) 72 A Crim R 301 Christodoulou [2008] NSWCCA 102 R v Gavel [2014] NSWCCA 56 GSH v R [2009] NSWCCA 214 Hili v R [2010] HCA 45, (2010) 242 CLR 520 Hoare v R (1989) 167 CLR 348 R v KNL [2005] NSWCCA 260 L, unreported NSWCCA 17/06/96 R v MAK [2006] NSWCCA 381 Markarian (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen (2011) 244 CLR 120 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 R v NJK [2011] NSWCCA 151 PGM [2008] NSWCCA 172 R v Pham [2015] HCA Ryan (2001) 206 CLR 267 Sellen (1991) 57 A Crim R 313 Van Ryn [2016] NSWCCA 1 Way v R [2004] NSWCCA 131 R v Windle [2012] NSWCCA 222 Yates [1985] VR 41 at 50
Category:	Sentence
Parties:	YY (Offender) Director of Public Prosecutions (Crown)
Representation:	Counsel: Mr M Fox (for the ODPP) Ms C Davenport (for the offender) Solicitors: Ms M Aresh (ODPP) Ms J Hall (for the offender)
File Number(s):	2015/87400
Publication restriction:	The Offender will be referred to by a pseudonym, YY (which will not be his correct initials). Likewise, the names of the complainant/s (and their relatives) are not used, with pseudonyms being used in their place. These steps are taken to guard against identifying the victims consistent with the statutory protection provided by s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987.