R v Zelensky (a pseudonym) - [2020] NSWDC 133

District Court

New South Wales

Medium Neutral Citation: R v Zelensky (a pseudonym) [2020] NSWDC 133
Hearing dates: 6 March 2020
Decision date: 06 March 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate term of imprisonment of 18 years. Non-parole period of 13 years.

Catchwords: SENTENCING – multiple sexual and indecent assault on step-daughter - sentence after trial
SENTENCING – relevant factors on sentence- multiple offences - six year period – victim a child - relationship between offender and victim - hardship in custody – PTSD - separation from family
Legislation Cited: Crimes Act 1900
Crimes (High-Risk) Offenders Act 2006
Crimes (Sentencing Procedure) Act 1999
Cases Cited: BT v R [2010] NSWCCA 267
LB v R [2019] NSWCCA 151
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen (2011) 244 CLR 120
Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38
R v Cattell [2019] NSWCCA 297
R v Edwards (1996) 90 A Crim R 510
R v Herring (1956) 73 WN (NSW) 203
R v Windle [2012] NSWCCA 222
Ryan v The Queen (2001) 206 CLR 267
Tepania v R [20018] NSWCCA 247
Category: Sentence
Parties: Alex Zelensky (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr Z Khan (for the offender)
Ms N Keay, Crown Prosecutor
Solicitors:
Morrisons Law (for the offender)

File Number(s): 2018/00302703
Publication restriction: The offender, the complainant and the child witness have been referred to in this judgment by pseudonyms. There is to be no publication of any information that might identify the offender, the complainant and the child witness: s578A of the Crimes Act 1900; S15A Children (Criminal Proceedings) Act 1987.

SENTENCE

INTRODUCTION

On 18 December 2019, after an eight day trial, a jury of 12 found Alex Zelensky (a pseudonym) guilty of 19 counts involving a sexual or indecent assault of his stepdaughter Miriam (a pseudonym). The offences occurred in the family home or garage in the Wollongong area between 2009 and 2015; Miriam was between nine and 15 years old:

Seven convictions were for offences charged pursuant to s 61M(2) Crimes Act 1900;

Three convictions were for offences charged pursuant to s 66C(2) Crimes Act 1900 and

Nine convictions were for offences s 66C(4) Crimes Act 1900, as it applied at the relevant time.

At the time, a s 61M(2) offence carried a maximum penalty of ten years and a standard non-parole period eight years; offences pursuant to s 66C(2) carried a maximum of 20 years; and s 66C(4), 12 years.
For each s 66C offence, the circumstance of aggravation was that Miriam was under the offender’s authority. With the exception of count 20, at the relevant time no standard non-parole applied to the s 66C offences. They do now. Given the timeframe for count 20 covered the introduction of standard non-parole periods, and as I cannot find when in that period the offence occurred, it has been agreed that I proceed on the basis that no standard non-parole period applied.
That said,…

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 Zelensky (a pseudonym)

Details

AGLC: R v Zelensky (a pseudonym) [2020] NSWDC 133
Case: [2020] NSWDC 133
Decision Date: 06 March 2020

CaseChat Overview and Summary

In the matter of R v Zelensky, the respondent faced sentencing following a trial where he was found guilty of multiple sexual and indecent assaults against his step-daughter over a period spanning six years. The court was tasked with determining an appropriate sentence for these serious offences, considering the unique circumstances surrounding the victim and the offender. The case came before the court which had to balance the severity of the crimes with various mitigating factors presented by the defence.

The court identified several key legal issues. Foremost was the calculation of an aggregate sentence that reflected the gravity of the offences, which spanned a significant duration and involved a child victim. Other considerations included the offender's relationship with the victim, the potential for rehabilitation, and the impact of incarceration on the offender's mental health and family situation. The court also needed to determine a non-parole period that would adequately protect the community while considering the offender's prospects for rehabilitation.

In its reasoning, the court recognised the heinous nature of the crimes, emphasising the long-term trauma inflicted on the victim. It noted the substantial breach of trust and the offender's position of authority over the victim. The court also acknowledged the offender's PTSD and the impact of separation from his family but found these factors insufficient to substantially reduce the sentence. Ultimately, the court imposed an aggregate term of imprisonment of 18 years, with a non-parole period of 13 years, considering both the need for deterrence and the potential for the offender to be rehabilitated.

Orders

Orders of the court

Aggregate term of imprisonment of 18 years. Non-parole period of 13 years.

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 Zelensky (a pseudonym) [2020] NSWDC 133
Hearing dates:	6 March 2020
Decision date:	06 March 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate term of imprisonment of 18 years. Non-parole period of 13 years.
Catchwords:	SENTENCING – multiple sexual and indecent assault on step-daughter - sentence after trial SENTENCING – relevant factors on sentence- multiple offences - six year period – victim a child - relationship between offender and victim - hardship in custody – PTSD - separation from family
Legislation Cited:	Crimes Act 1900 Crimes (High-Risk) Offenders Act 2006 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	BT v R [2010] NSWCCA 267 LB v R [2019] NSWCCA 151 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen (2011) 244 CLR 120 Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38 R v Cattell [2019] NSWCCA 297 R v Edwards (1996) 90 A Crim R 510 R v Herring (1956) 73 WN (NSW) 203 R v Windle [2012] NSWCCA 222 Ryan v The Queen (2001) 206 CLR 267 Tepania v R [20018] NSWCCA 247
Category:	Sentence
Parties:	Alex Zelensky (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr Z Khan (for the offender) Ms N Keay, Crown Prosecutor Solicitors: Morrisons Law (for the offender)
File Number(s):	2018/00302703
Publication restriction:	The offender, the complainant and the child witness have been referred to in this judgment by pseudonyms. There is to be no publication of any information that might identify the offender, the complainant and the child witness: s578A of the Crimes Act 1900; S15A Children (Criminal Proceedings) Act 1987.