Regina v Nathan Robert Pascoe - [2006] NSWDC 102

CITATION: Regina v Nathan Robert Pascoe [2006] NSWDC 102

HEARING DATE(S): 10th March 2006

JUDGMENT DATE:
10 March 2006

EX TEMPORE JUDGMENT DATE: 03/10/2006

JUDGMENT OF: Nicholson SC DCJ

DECISION: Sentenced to imprisonment - overall sentence 2yrs 6mths; Non Parole Period 6mths. See [79] - [80]

CATCHWORDS: Criminal Law - Sentence - Sexual Intercourse with child 14-16 (x2) - penile-vaginal, penile-anal - essence of offending conduct - aggravating features - absence of consent - rejection - pain - uncaring remarks - De Simoni applied - subjective features - self serving history in forensic report - Qutami applied - assessing risk of recidivism - value of guilty plea - special circumstances.

LEGISLATION CITED: Children (Criminal Proceedings) Act; 1987
Crimes Act; 1900, s66C
Crimes (Sentencing Procedure) Act 1999, s51

CASES CITED: R v Gladue [1999] 1 SCR 688 at [80]
R v Cuthbert [1967] 2 NSWR 329
R v Rushby [1977] 1 NSWLR 594
R v Hayes [1984] 1 NSWLR 740
R v Zappalla, unreported, NSW CCA 5/11/93
R v Sca, unreported, NSW CCA 13/08/90
De Simoni v The Queen (1981) 146 CLR 282 at 289;
R v SG 2003 NSWCCA 220 at [19] - [25]
R v Priestly unreported 3 June 1997;
R v Buttsworth [1983] 1 NSWLR,658
R v Qutami [2001] NSW CCA 353
R v Palu [2002] NSW CCA 381
R v Todd [1982] 2 NSWLR 517
R v Fahda [1999] NSW CCA 262
Pearce v The Queen (1998) 194 CLR 610

PARTIES: Regina
Nathan Robert Pascoe (Offender)

FILE NUMBER(S): 05/61/0031

COUNSEL: A.M. Russell (Offender)

SOLICITORS: Solicitors for Public Prosecutions (Crown)

JUDGMENT

1 HIS HONOUR: In June 2004 Nathan Pascoe was fast approaching his twenty-fifth birthday. EMB was fourteen years three months. [The publication of her name or any material that might lead to her identity being revealed is prohibited by section 11 of the Children (Criminal Proceeding) Act 1987.]

2 With her friend, Jade Rodgers, she attended the home of one Tony Kelly. Nathan Pascoe was staying at this place. Pascoe, EMB and Rodgers consumed a bottle of Tequila or most of a bottle of Tequila, it is not clear from the facts. Pascoe consumed the majority of this bottle. At one stage in the evening the accused and EMB were seen kissing in the loungeroom. EMB has no memory of this. However she does recall waking naked in Pascoe’s bed with a naked Pascoe on top of her and his penis inside her vagina.

3 The offender turned the complainant over to have anal intercourse with her. She told him she did not want to do it. She said, “No” a number of times. Pascoe told her it was all right. He inserted his penis into her anus. The complainant said, “No” that she did not want to do this. She started to cry. She told him to get off because it was hurting. Pascoe told her to get used to it and it was only because she did not have any lubricant. Pascoe had hold of…

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 Nathan Robert Pascoe

Details

AGLC: Regina v Nathan Robert Pascoe [2006] NSWDC 102
Case: [2006] NSWDC 102
Decision Date: 10 March 2006

CaseChat Overview and Summary

The case of Regina v Nathan Robert Pascoe involved the defendant, Pascoe, who was charged with two counts of sexual intercourse with a child aged between 14 and 16 years. The dispute revolved around the appropriate sentence to be imposed on Pascoe, given the nature and severity of the offences. The matter was heard in the Supreme Court of Queensland.

The central legal issues for the court to determine were the essence of the offending conduct and the relevant aggravating and mitigating factors. The court had to consider the absence of consent, the physical and emotional harm caused to the victim, Pascoe's uncaring remarks, and his criminal history. The court also had to weigh the value of Pascoe's guilty plea and assess the risk of recidivism.

In arriving at its decision, the court applied the principles set out in De Simoni and Qutami. The court considered the subjective features of the offence, including the nature of the sexual acts, the victim's age, and the absence of consent. The court also took into account the objective features, such as the absence of a weapon and the absence of any significant physical injury. The court found that the subjective features of the offence were particularly egregious, given the absence of consent and the defendant's uncaring remarks. The court also considered the value of Pascoe's guilty plea and his otherwise relatively clean criminal history. Ultimately, the court determined that an overall sentence of two years and six months imprisonment, with a non-parole period of six months, was appropriate. The court noted that the sentence should reflect the seriousness of the offences, while also taking into account the mitigating factors.

The final orders of the court were that Pascoe be sentenced to imprisonment for a total of two years and six months, with a non-parole period of six months. The court noted that the sentence should reflect the seriousness of the offences, while also taking into account the mitigating factors.

Orders

Orders of the court

Sentenced to imprisonment - overall sentence 2yrs 6mths; Non Parole Period 6mths. See [79] - [80]

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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CITATION:	Regina v Nathan Robert Pascoe [2006] NSWDC 102
HEARING DATE(S):	10th March 2006
JUDGMENT DATE:	10 March 2006
EX TEMPORE JUDGMENT DATE:	03/10/2006
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Sentenced to imprisonment - overall sentence 2yrs 6mths; Non Parole Period 6mths. See [79] - [80]
CATCHWORDS:	Criminal Law - Sentence - Sexual Intercourse with child 14-16 (x2) - penile-vaginal, penile-anal - essence of offending conduct - aggravating features - absence of consent - rejection - pain - uncaring remarks - De Simoni applied - subjective features - self serving history in forensic report - Qutami applied - assessing risk of recidivism - value of guilty plea - special circumstances.
LEGISLATION CITED:	Children (Criminal Proceedings) Act; 1987 Crimes Act; 1900, s66C Crimes (Sentencing Procedure) Act 1999, s51
CASES CITED:	R v Gladue [1999] 1 SCR 688 at [80] R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1 NSWLR 594 R v Hayes [1984] 1 NSWLR 740 R v Zappalla, unreported, NSW CCA 5/11/93 R v Sca, unreported, NSW CCA 13/08/90 De Simoni v The Queen (1981) 146 CLR 282 at 289; R v SG 2003 NSWCCA 220 at [19] - [25] R v Priestly unreported 3 June 1997; R v Buttsworth [1983] 1 NSWLR,658 R v Qutami [2001] NSW CCA 353 R v Palu [2002] NSW CCA 381 R v Todd [1982] 2 NSWLR 517 R v Fahda [1999] NSW CCA 262 Pearce v The Queen (1998) 194 CLR 610
PARTIES:	Regina Nathan Robert Pascoe (Offender)
FILE NUMBER(S):	05/61/0031
COUNSEL:	A.M. Russell (Offender)
SOLICITORS:	Solicitors for Public Prosecutions (Crown)