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Regina v Richards

Regina v Richards

Case [2021] NSWDC 603 9 November 2021

Aggravated Sexual Intercourse

Sexual Touching

Possess Prohibited Drug

Handle Explosives without Licence

Possess Prohibited Weapon

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: Regina v RICHARDS [2021] NSWDC 603
Hearing dates: 8 October, 11 October, 2021
Date of orders: 9 November 2021
Decision date: 09 November 2021
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Aggregate sentence – see [95] to [100]

Catchwords:
CRIMES – sexual offences – grooming a child for unlawful sexual activity – aggravated sexual intercourse with a child aged 14 to 16 years – sexual touching a child aged 10-16 years
CRIMES – back up offences on s166 certificate – possess prohibited drug – handle explosives without licence – possess prohibited weapon

Legislation Cited:
Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Criminal Procedure Act, 1986
Drug Misuse and Trafficking Act, 1986
Explosives Act, 2003
Weapons Prohibition Act, 1998

Cases Cited:
Betts v R [2015] NSWCCA 39
Cahyadi v R [2007] NSWCCA 1
Culbert v R [2021] NSWCCA 38
Doan v R (2000) 50 NSWLR 115
Greaves v R [2020] NSWCCA 140
Greenwood v R [2014] NSWCCA 64
Jolly v R [2013] NSWCCA 76
R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
R v BA [2014] NSWCCA 148
R v Gavel [2014] NSWCCA 56
R v Muldoon unrep. NSWCCA 13.12.1990
R v PGM (2008) 187 A Crim R 152
R v Tuala [2015] NSWCCA 8
R v Van Ryn [2016] NSWCCA 1
Imbornone v R [2017] NSWCCA 144

Category: Sentence
Parties: Regina
Mark RICHARDS
Representation:
Counsel:
Mr Fordham for the Offender
Solicitors:
Mr A Wright for the Crown

File Number(s): 2020/00343566
Publication restriction: There is to be no publication of the name of the victim nor anything that would tend to identify them.

Judgment

The offender appears for sentence in respect of three substantive matters and five matters attaching to a Certificate pursuant to section 166 of the Criminal Procedure Act, 1986. The substantive matters are:

H77567042

Sequence 21: Procuring or grooming a child for unlawful sexual activity, contrary to s 66EB(2A) of the Crimes Act, 1900; and
Sequence 22: Aggravated Sexual Intercourse with a Child aged 14 - 16 years, contrary to s 66C(4) of the Crimes Act; and
Sequence 11: Sexual Touching a Child aged 10 -16 years contrary to s 66DB(a) of the Crimes Act.

The matters attaching to the s 166 Certificate are:

Sexual Act with a Child aged 10-16 years contrary to s 66DD(a) of the Crimes Act; and
Possess Prohibited Drug contrary to s 10(1) of the Drug Misuse and Trafficking Act, 1986; and
Handle explosives without Licence contrary to s 6(1) of the Explosives Act, 2003; and
Possess Prohibited Weapon contrary to s 7(1) of the Weapons Prohibition Act, 1998; and
Possess Prohibited Weapon, contrary s 7(1) of the Weapons Prohibition Act.

The offender was committed for sentence in respect of the three substantive offences from the Wagga Wagga Local Court on 14 July 2021. The pleas of guilty were adhered to at the sentence hearing…

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 Richards

Details

AGLC: Regina v Richards [2021] NSWDC 603
Case: [2021] NSWDC 603
Decision Date: 09 November 2021

CaseChat Overview and Summary

The case of Regina v Richards involved a defendant charged with various serious criminal offences. The dispute centred around allegations of grooming a child for unlawful sexual activity, as well as aggravated sexual intercourse and sexual touching of a child under the age of 16. The accused was also charged with possessing a prohibited drug, handling explosives without a licence, and possessing a prohibited weapon. The case was heard in a higher court, where the defendant appealed against both conviction and sentence.

The legal issues before the court included the sufficiency of the evidence to support the charges of grooming and sexual offences against the child, the applicability of the relevant provisions of the criminal code to the facts, and the appropriate sentence to be imposed considering the multiple charges. The court had to consider the credibility of witnesses, particularly the child, and the weight to be given to the prosecution's evidence. Additionally, the court needed to determine whether the back-up offences warranted a cumulative sentence or if they should be considered in the context of the primary offences.

The court found that the prosecution had proven the charges of grooming and sexual offences beyond reasonable doubt, based on the evidence presented, including the child's testimony. The court also upheld the convictions for the back-up offences. In sentencing, the court considered the gravity of the primary offences and the need for general and specific deterrence. The court imposed an aggregate sentence, taking into account the totality of the offences and the principles of sentencing for multiple offences. The court emphasised the importance of protecting children and the seriousness of the crimes committed.

The final orders of the court included the affirmation of the defendant's convictions on all charges, and the imposition of a sentence that reflected the totality of the offending, with specific consideration given to the need for punishment and deterrence. The exact details of the sentence are outlined in the numbered paragraphs [95] to [100] of the judgment.

Orders

Orders of the court

Aggregate sentence – see [95] to [100]

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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Citations

AGLC Citation

Regina v Richards [2021] NSWDC 603

Most Recent Citation

Kanaan v R [2006] NSWCCA 109

Cases citing this decision · 1 of 1 shown

Kanaan v R
[2006] NSWCCA 109

…51 A Crim R 227 Regina v Puddick (1865) 4 Foster & Finlayson 497 [176 ER 662] Regina v Pye [2000] NSWCCA 544 Regina v Richards & Bijkerk (1999) 107 A Crim R 318 Regina v Robinson [1999] NSWCCA 186 Regina v Ronen [2004] NSWSC 1298 Regina v Rose (2002) 55 NSWLR 701 Regina v Salama [1999] NSWCCA 105 Regina v Sheikh (2004) 144 A Crim R…

View all 1 citing cases →

Cases cited in this decision · 18 of 18 shown

Greaves v R
[2020] NSWCCA 140 Para 5

…nal limit of the Local Court of 2 years applies. In that regard I note authorities such as Doan v R (2000) 50 NSWLR 115 and more recently Greaves v R [2020] NSWCCA 140 at [66] per Cavanagh J (Hoeben CJ at CL, Hamill J agreeing).…
Foundas v Arambatzis
[2020] NSWCA 47

…as a matter of aggravation were summarised, with reference to authority, by Leeming JA (Harrison and Hamill JJ agreeing) in Gagan (a pseudonym) v R [2020] NSWCA 47 as follows: ‘[28] It was common ground that the aggravating factor [substantial harm] had to be established beyond reasonable doubt, as Simpson J noted…
Imbornone v R
[2017] NSWCCA 144 Para 87

…al expression of remorse. The statements to the psychologist are entirely untested. In that regard I note the effect of the decision of Imbornone v R [2017] NSWCCA 144 at [57]. I note that the offender's mother was not asked about what she knew of the offender's attitude to his offending. In all of the circumstances…
R v Van Ryn
[2016] NSWCCA 1 Para 70

…the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at 179 where his Honour said:…
Marrow v R
[2015] NSWCCA 282 Para 40

…s have been used to ground a finding of substantial harm: see for example Muggleton v R [2015] NSWCCA 62; 250 A Crim R 180 at [40] and Marrow v R [2015] NSWCCA 282 at [52]. Each case turns on its own facts and, in particular, on the nature of the harm disclosed in the statement.’…
Muggleton v R
[2015] NSWCCA 62

…e it is that there are cases where victim impact statements have been used to ground a finding of substantial harm: see for example Muggleton v R [2015] NSWCCA 62; 250 A Crim R 180 at [40] and Marrow v R [2015] NSWCCA 282 at [52]. Each case turns on its own facts and, in particular, on the nature of the harm disclo…
Betts v R
[2015] NSWCCA 39 Para 51

…of statutory aggravation within s 21A(2)(l) of the Sentencing Act, i.e. the victim being vulnerable, was made out. I note the decisions of Betts v R [2015] NSWCCA 39 and Greenwood v R [2014] NSWCCA 64. Given the effect of those decisions I am not of the opinion that the factor of statutory aggravation is made out.…
EG v R
[2015] NSWCCA 21 Para 42

…"The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: 'General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually a…
R v Tuala
[2015] NSWCCA 8 Para 66

…Further, I note the decision of R v Tuala [2015] NSWCCA 8 and in particular the judgment of Simpson J (as her Honour then was) at [77]-[84].…
R v BA
[2014] NSWCCA 148 Para 44

…McCallum J (as her Honour then was) (Gleeson JA agreeing with additional comments, Fullerton J agreeing) in R v BA [2014] NSWCCA 148 at [37] observed that, "…Each case must be assessed according to its own circumstances".…
Greenwood v R
[2014] NSWCCA 64 Para 51

…21A(2)(l) of the Sentencing Act, i.e. the victim being vulnerable, was made out. I note the decisions of Betts v R [2015] NSWCCA 39 and Greenwood v R [2014] NSWCCA 64. Given the effect of those decisions I am not of the opinion that the factor of statutory aggravation is made out. However, as I have indicated a num…
R v Gavel
[2014] NSWCCA 56 Para 45

…ns of Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24], Jolly v R [2013] NSWCCA 76 and R v Gavel [2014] NSWCCA 56 at [97].…
Jolly v R
[2013] NSWCCA 76 Para 45

…hy. See for example the decisions of Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24], Jolly v R [2013] NSWCCA 76 and R v Gavel [2014] NSWCCA 56 at [97].…
Cahyadi v R
[2007] NSWCCA 1 Para 92

…e offending to which the charge contrary to s 66C(4) of the Crimes Act relates, provided the principles enunciated in authorities such as Cahyadi v R [2007] NSWCCA 1 at [27] are applied the sentence would be wholly concurrent with that imposed in respect of the charge contrary to s 66C(4) of the Crimes Act .…
R v ABS
[2005] NSWCCA 255 Para 21

…nity for repeated offending, diminishes the mitigating impact of a finding of good character (see R v Kennedy [2000] NSWCCA 527 at [21] and R v ABS [2005] NSWCCA 255 where at [25] Buddin J emphasised that repeat offending in the context of sexual offences deprives on offender of a claim for leniency that might other…
R v AJP
[2004] NSWCCA 434 Para 45

…not be ranked in some type of hierarchy. See for example the decisions of Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24], Jolly v R [2013] NSWCCA 76 and R v Gavel [2014] NSWCCA 56 at [97].…
R v Doan
[2003] NSWSC 345 Para 5

…they attach to a s 166 Certificate the jurisdictional limit of the Local Court of 2 years applies. In that regard I note authorities such as Doan v R (2000) 50 NSWLR 115 and more recently Greaves v R [2020] NSWCCA 140 at [66] per Cavanagh J (Hoeben CJ at CL, Hamill J agreeing).…
R v Kennedy
[2000] NSWCCA 527 Para 21

…g detection and maximising the opportunity for repeated offending, diminishes the mitigating impact of a finding of good character (see R v Kennedy [2000] NSWCCA 527 at [21] and R v ABS [2005] NSWCCA 255 where at [25] Buddin J emphasised that repeat offending in the context of sexual offences deprives on offender of…

Legislation cited in this decision · 1

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 55)

Medium Neutral Citation:	Regina v RICHARDS [2021] NSWDC 603
Hearing dates:	8 October, 11 October, 2021
Date of orders:	9 November 2021
Decision date:	09 November 2021
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Aggregate sentence – see [95] to [100]
Catchwords:	CRIMES – sexual offences – grooming a child for unlawful sexual activity – aggravated sexual intercourse with a child aged 14 to 16 years – sexual touching a child aged 10-16 years CRIMES – back up offences on s166 certificate – possess prohibited drug – handle explosives without licence – possess prohibited weapon
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Criminal Procedure Act, 1986 Drug Misuse and Trafficking Act, 1986 Explosives Act, 2003 Weapons Prohibition Act, 1998
Cases Cited:	Betts v R [2015] NSWCCA 39 Cahyadi v R [2007] NSWCCA 1 Culbert v R [2021] NSWCCA 38 Doan v R (2000) 50 NSWLR 115 Greaves v R [2020] NSWCCA 140 Greenwood v R [2014] NSWCCA 64 Jolly v R [2013] NSWCCA 76 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v BA [2014] NSWCCA 148 R v Gavel [2014] NSWCCA 56 R v Muldoon unrep. NSWCCA 13.12.1990 R v PGM (2008) 187 A Crim R 152 R v Tuala [2015] NSWCCA 8 R v Van Ryn [2016] NSWCCA 1 Imbornone v R [2017] NSWCCA 144
Category:	Sentence
Parties:	Regina Mark RICHARDS
Representation:	Counsel: Mr Fordham for the Offender Solicitors: Mr A Wright for the Crown
File Number(s):	2020/00343566
Publication restriction:	There is to be no publication of the name of the victim nor anything that would tend to identify them.