Regina v Djs - [2001] NSWCCA 189

CITATION: Regina v DJS [2001] NSWCCA 189

FILE NUMBER(S): CCA 60760/99

HEARING DATE(S): 14 May 2001

JUDGMENT DATE:
14 May 2001

PARTIES :

Regina
DJS

JUDGMENT OF: Powell JA at 14; Wood CJ at CL at 15; Sully J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/2512

LOWER COURT JUDICIAL
OFFICER : Luland DCJ

COUNSEL : E. Wilkins - Crown
R. Burgess - Applicant

SOLICITORS: S. E. O'Connor - Crown
D. J. Humphreys - Applicant

LEGISLATION CITED: Crimes Act (1900) NSW
Crimes (Sentencing Procedure) Act 1999 NSW

CASES CITED:
R. v Hearne 2001 NSWCCA 377 at par 25

DECISION: Conviction quashed. Pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act charge preferred in District Court dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60760/99

POWELL JA

WOOD CJ at CL

SULLY J

Monday 14 May 2001

REGINA v D J S

JUDGMENT

1 SULLY J: On 8 November 1999 the applicant pleaded guilty in the District Court at Sydney to a charge of indecent assault. The charge had been brought pursuant to Section 66 of the Crimes Act (1900) NSW as it then stood; that section providing for a maximum penalty of imprisonment for five years.

2 The learned sentencing Judge recorded a conviction but deferred passing sentence conditionally upon the entering, by the applicant, into a recognisance himself in the sum of $500 to be of good behaviour for a period of twelve months. No particular conditions were attached by his Honour to the recognisance.

3 The primary objective of the present appeal is to have expunged the formal conviction.

4 The relevant facts are straightforward and can be taken as follows from the remarks on sentence at page 12:

"The offence occurred 20 years ago when the prisoner himself was just fourteen years of age. His sister, at that time, was somewhat younger, she being only eight.

The offence comprised him taking the complainant into a bedroom where they were in a wardrobe - no doubt to hide from their parents - and he removed her underwear and touched her on the vagina. He was disturbed by his mother who became aware what was going on, told him to stop, and that was the end of the matter. No report was made at that time, and if I may say so, I could well understand why the mother would not make the report about the incident."

5 The learned sentencing Judge made the following findings of fact, all of which are significant for present purposes:

"It seems to me to be an offence which was, at its highest, some form of a child experimenting in some sexual activity. There is no suggestion before me that there was any ongoing sexual perversion ever displayed by the prisoner.

The event now has occurred so long ago and did not fit into what, to my mind, is a serious example of indecent assault ...."

6 His Honour dealt briefly, but fairly, with the relevant subjective matters.…

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 Regina v Djs

Details

AGLC: Regina v Djs [2001] NSWCCA 189
Case: [2001] NSWCCA 189
Decision Date: 14 May 2001

CaseChat Overview and Summary

In the matter of Regina v DJS, the appellant sought to appeal against his conviction and sentence for an offence of indecent assault. The appeal was heard by the New South Wales Court of Criminal Appeal, with Powell JA, Wood CJ at CL, and Sully J presiding. The case involved a charge that was laid pursuant to Section 66 of the Crimes Act (1900) NSW, which at the time provided for a maximum penalty of imprisonment for five years. The applicant had pleaded guilty to the charge in the District Court at Sydney but had not yet been sentenced. Instead, the sentencing judge had deferred passing sentence conditionally upon the applicant entering into a recognisance himself in the sum of $500 to be of good behaviour for a period of twelve months.

The primary issue for the Court of Criminal Appeal was whether the sentencing judge had erred in law by imposing a conviction upon the applicant. The Court found that the judge had indeed erred in two respects. First, the judge had made a sweeping statement that any adult who interferes with a child should, absent exceptional circumstances, be at least formally convicted. The Court held that this proposition was too broad and could not be applied to an event such as the one in this case, which the sentencing judge had described as "at its highest, some form of a child experimenting in some sexual activity." Secondly, the Court found that the judge had not properly considered the fact that the offence was strikingly stale, having occurred some 20 years prior to the applicant's conviction. The Court held that this fact called for a careful consideration of various matters, including the reasons why the complainant had come forward after such a long period of time and the nature and extent of any counselling she had received.

The Court of Criminal Appeal quashed the applicant's conviction and dismissed the charge preferred in the District Court, pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act 1999 NSW. The Court held that the stigmatising of the applicant by a formal conviction was erroneous, and that it was not necessary in the interests of justice to add to the accumulated burden the applicant had already suffered the additional and special burden of a formal and recent conviction. The Court's orders were those as stated by Sully J.

Orders