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Regina v RP

Regina v RP

Case [2018] NSWDC 125 18 May 2018

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District Court

New South Wales

Medium Neutral Citation: Regina v RP [2018] NSWDC 125
Hearing dates: 20 April 2018
Date of orders: 18 May 2018
Decision date: 18 May 2018
Jurisdiction: Criminal
Before: His Honour Judge G Lerve
Decision:
See [82]-[88]

Catchwords: Sentence – offending when offender a juvenile but sentenced as an adult - onerous bail conditions – pre-sentence custody – intellectual functioning issues with offender
Legislation Cited: Children (Criminal Proceedings) Act, 1987
Crimes Act, 1900
Crimes (Sentencing Procedure) Act,1999
Cases Cited: RP v The Queen [2016] HCA 53
R v AA [2017] NSWCCA 84
R v Anderson [2012] NSWCCA 175
Brown v R [2014] NSWCCA 215
Bugmy v The Queen [2013] HCA 37
Butters v R [2010] NSWCCA 1
TC v R [2016] NSWCCA 3
R v Donald [2013] NSWCCA 238
Hili & Jones v The Queen [2010] HCA 45
Hampton v R [2014] NSWCCA 131.
Hamilton v R [2016] NSWCCA 59
Kelly –v- R [2018] NSWCCA 44
Kennedy v R [2010] NSWCCA 260
Little v R [2018] NSWCCA 63
Locke v R (2010) 207 A Crim R 34
R v Niass unrep. NSWCACA 16 Nov 1988
Refaieh v R [2018] NSWCCA 72
BP v R [2010] NSWCCA 159.
SHR v R [2014] NSWCCA 94
R v Simpson (2001) 53 NSWLR 704
Sullivan & Skillan v R [2008] NSWCCA 296
KT v R [2008] NSWCCA 51
Thammavongsa v R (2015) 251 A Crim R 342
R v Tuala [2015] NSWCCA 8
R v Van Ryn [2016] NSWCCA 1
Category: Sentence
Parties: Director of Public Prosecutions
RP
Representation:
Counsel:
Mr P Kerr for the Director of Public Prosecutions
Mr T Warr for the Offender
Solicitors:
Ms N Wojcik for the Director
Mr D Barron for the Offender

File Number(s): 2012/330538, 2014/99541
Publication restriction: Non publication of the name of the offender or the complainants or anything that may tend to identify them.

Judgment

The offender is the same person as the RP to which the decision of the High Court of Australia RP v The Queen [2016] HCA 53 relates.
On 9 May 2017 the offender pleaded guilty to three counts on an indictment, namely:

That (he) between 28 February 2007 and 18 September 2007, in Junee in the State of New South Wales, did have sexual intercourse with JF without his consent, knowing he was not consenting, when JF was under the age of 16 years, namely 15 years, contrary to s 61J(1) of the Crimes Act, 1900 and further

That (he) on or about 19 November 2007, at Junee in the State of New South Wales, did assault JF and at the time of that assault committed an act of indecency on JF, he then being under the age of 16 years, namely 15 years, contrary to s 61M(1) of the Crimes Act, and further

That (he) on or about 22 October 2012, at North Wagga Wagga in the State of New South Wales, did attempt to have sexual intercourse with TDP, a…

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 RP

Details

AGLC: Regina v RP [2018] NSWDC 125
Case: [2018] NSWDC 125
Decision Date: 18 May 2018

CaseChat Overview and Summary

The defendant, RP, was convicted of several offences and faced sentencing as an adult despite being a juvenile at the time of the crimes. RP had a history of offending and was deemed to be at high risk of reoffending. The court was tasked with determining an appropriate sentence, considering the juvenile status of the offender at the time of the offences, the onerous bail conditions, and the period of pre-sentence custody. Additionally, the court had to consider RP's intellectual functioning issues.

The primary legal issues before the court were whether the onerous bail conditions and pre-sentence custody should influence the sentence, and how to appropriately weigh the mitigating factor of RP being a juvenile at the time of the offending. The court needed to balance the need for punishment and deterrence with the rehabilitation of the offender, considering the unique circumstances of RP's case.

The court acknowledged the importance of considering RP's age at the time of the offending and the impact of the onerous bail conditions and pre-sentence custody on the offender. The court also took into account RP's intellectual functioning issues, which were identified as contributing factors to the offending behaviour. After weighing these factors, the court determined that the appropriate sentence would be a combination of imprisonment and community-based orders, with specific conditions aimed at addressing RP's rehabilitation needs.

The court ordered RP to serve a term of imprisonment followed by a period of supervision under community-based orders, with specific conditions to address RP's rehabilitation needs. The court also considered the need for ongoing support and monitoring to prevent reoffending, taking into account RP's intellectual functioning issues and the circumstances of the offending. The detailed orders are set out in paragraphs [82] to [88] of the judgment.

Orders

Orders of the court

See [82]-[88]

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.

Citations

AGLC Citation

Regina v RP [2018] NSWDC 125

Most Recent Citation

R v DW (No 1) [2020] NSWDC 461

Cases citing this decision · 3 of 3 shown

R v Oxley (a pseudonym)
[2022] NSWDC 200 Para 23

…R v RP [2018] NSWDC 125 involved the same young offender to which the decision of the High Court of Australia in RP v The Queen [2016] HCA 53 relates. There were three counts on the indictment. The only count relevant for my analysis in this matter is count 1, which was contrary to s 61J(1) where the circumstance o…
R v DW (No 1)
[2020] NSWDC 461 Para 118

…However, one of the cases included in the statistics, Regina v RP [2018] NSWDC 125, a decision of his Honour Judge Lerve, dealt with an offender who was 19 years of age when he committed an offence under s 66D of the Crimes Act , for which he received a term of imprisonment. I should note in passing this is the sam…
State of New South Wales v RP (Preliminary)
[2019] NSWSC 937 Para 2

…child: Children (Criminal Proceedings) Act 1987 (NSW), s 15A. Those initials were used to refer to him in previously published judgments: Regina v RP [2018] NSWDC 125; RP v R (2015) 90 NSWLR 234; [2015] NSWCCA 215; and RP v The Queen (2016) 259 CLR 641; [2016] HCA 53.…

View all 3 citing cases →

Cases cited in this decision · 27 of 27 shown

Refaieh v The Queen
[2018] NSWCCA 72 Para 38

…I also note and have regard to the decision of Refaieh v R [2018] NSWCCA 72 at [41]ff per N Adams J.…
Little v R
[2018] NSWCCA 63 Para 32

…unrep. NSWCACA 16 Nov 1988 and Hampton v R [2014] NSWCCA 131. I raised with the parties the decisions of Hamilton v R [2016] NSWCCA 59 and Little v R [2018] NSWCCA 63. The Crown maintained in submissions that these last two authorities can be distinguished.…
Kelly v R
[2018] NSWCCA 44 Para 47

…I also note and have regard to the decision of the Court of Criminal Appeal in Kelly v R [2018] NSWCCA 44 at [43]-[[54]. In the matter presently under consideration while there are submissions as to the negative impact or effect of the bail conditions on the offender there is little in the way of evidence.…
R v AA
[2017] NSWCCA 84 Para 21

…the day of the sentence hearing. The Crown then after the luncheon adjournment provided valuable assistance with reference to the decision in R v AA [2017] NSWCCA 84. Beech-Jones J (Leeming JA, Hulme J agreeing said at [64]-[67]:…
RP v The Queen
[2016] HCA 53 Para 1

…The offender is the same person as the RP to which the decision of the High Court of Australia RP v The Queen [2016] HCA 53 relates.…
Hamilton v R
[2016] NSWCCA 59 Para 32

…on the authorities of R v Niass unrep. NSWCACA 16 Nov 1988 and Hampton v R [2014] NSWCCA 131. I raised with the parties the decisions of Hamilton v R [2016] NSWCCA 59 and Little v R [2018] NSWCCA 63. The Crown maintained in submissions that these last two authorities can be distinguished.…
R v Van Ryn
[2016] NSWCCA 1 Para 74

…on has some force but only for counts 1 and 2. There is a very real issue of general deterrence in respect of count 3 – see for example R v Van Ryn [2016] NSWCCA 1 at [179]. Even in respect of counts 1 and 2 the issues of general deterrence and retribution cannot be completely ignored when sentencing young offende…
TC v R
[2016] NSWCCA 3

…[2017] NSWCCA 84 R v Anderson [2012] NSWCCA 175 Brown v R [2014] NSWCCA 215 Bugmy v The Queen [2013] HCA 37 Butters v R [2010] NSWCCA 1 TC v R [2016] NSWCCA 3 R v Donald [2013] NSWCCA 238 Hili & Jones v The Queen [2010] HCA 45 Hampton v R [2014] NSWCCA 131. Hamilton v R [2016] NSWCCA 59 Kelly –v- R [2018] NSWCCA…
R v McHugh
[2015] NZHC 2389

…ustody and the similar concept of rehabilitation "custody" is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588.…
R v Tuala
[2015] NSWCCA 8 Para 50

…However, without deprecating the undoubted effect on the victim, given the effect of the decision of the Court of Criminal Appeal in R v Tuala [2015] NSWCCA 8, in the absence of other material, for example from treating health professionals, the court cannot be satisfied beyond reasonable doubt that the victim has…
Brown v R
[2014] NSWCCA 215 Para 24

…uch aware of the limitations on statistics, particularly where the sample is small (see for e.g. Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [81] per Garling J), but I note from the JIRS statistics that out of a sample of 29 only 31% or 9 cases received a full time (as opposed to suspen…
Hampton v R
[2014] NSWCCA 131 Para 32

…od of 10 months and 24 days should be taken into account. The Crown relied on the authorities of R v Niass unrep. NSWCACA 16 Nov 1988 and Hampton v R [2014] NSWCCA 131. I raised with the parties the decisions of Hamilton v R [2016] NSWCCA 59 and Little v R [2018] NSWCCA 63. The Crown maintained in submissions that t…
SHR v R
[2014] NSWCCA 94

…SWCCA 63 Locke v R (2010) 207 A Crim R 34 R v Niass unrep. NSWCACA 16 Nov 1988 Refaieh v R [2018] NSWCCA 72 BP v R [2010] NSWCCA 159. SHR v R [2014] NSWCCA 94 R v Simpson (2001) 53 NSWLR 704 Sullivan & Skillan v R [2008] NSWCCA 296 KT v R [2008] NSWCCA 51 Thammavongsa v R (2015) 251 A Crim R 342 R v Tuala [2015] NS…
R v Donald
[2013] NSWCCA 238 Para 70

…of approach to counts 1 and 2. Latham J (Hidden & Adamson JJ agreeing) reviewed a number of authorities relating to the issue of delay in R v Donald [2013] NSWCCA 238 at [28]-[57]. Her Honour at [49] said:…
Bugmy v The Queen
[2013] HCA 37 Para 68

…ising his siblings. In all of the circumstances I am satisfied that the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 and authorities such as Kennedy v R [2010] NSWCCA 260 are enlivened, at least to some extent reducing the offender’s moral culpability.…
R v Anderson
[2012] NSWCCA 175 Para 45

…Davies J (Allsop P agreeing with additional comments, Campbell J agreeing and agreeing with the additional comments) in R v Anderson [2012] NSWCCA 175 said at [42]-[45]:…
Hili v The Queen
[2010] HCA 45 Para 24

…ve been imposed. I am very much aware of the limitations on statistics, particularly where the sample is small (see for e.g. Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [81] per Garling J), but I note from the JIRS statistics that out of a sample of 29 only 31% or 9 cases received a…
Kennedy v R
[2010] NSWCCA 260 Para 68

…am satisfied that the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 and authorities such as Kennedy v R [2010] NSWCCA 260 are enlivened, at least to some extent reducing the offender’s moral culpability.…
BP v R
[2010] NSWCCA 159 Para 26

…the Children (Criminal Proceedings) Act , and further the judgment of McClellan CJ at CL in KT v R [2008] NSWCCA 51 at [21]-[26] inclusive and BP v R [2010] NSWCCA 159. On the issue of youth I note and have regard to the decision of Locke v R (2010) 207 A Crim R 34 especially at [41]-[49] per Hulme J and the authori…
Butters v R
[2010] NSWCCA 1 Para 67

…There is nothing in the evidence that would entitle me to find on balance that the offender is remorseful – see for example Butters v R [2010] NSWCCA 1 at [17] per Fullerton J. The hearsay statements relating to offending in the psychologists reports do not relate to the offending for which the offender appears fo…
Truss v R
[2008] NSWCCA 325 Para 35

…e in the sense that it reduced the sentence to a level insufficient to reflect the objective seriousness of the offending: Delaney at [35]; Truss v R [2008] NSWCCA 325at [21].”…
Sullivan v R; Skillin v R
[2008] NSWCCA 296 Para 3

…ed to open negotiations and offer to plead guilty to a charge or charges other than what is on the proposed indictment – see Sullivan & Skillan v R [2008] NSWCCA 296. The fact remains however that May 2017 was the first opportunity the offender had to plead to the third count. I allow 12.5% for the utilitarian value…
KT v R
[2008] NSWCCA 51 Para 26

…uvenile offenders I note and have regard to s 6 of the Children (Criminal Proceedings) Act , and further the judgment of McClellan CJ at CL in KT v R [2008] NSWCCA 51 at [21]-[26] inclusive and BP v R [2010] NSWCCA 159. On the issue of youth I note and have regard to the decision of Locke v R (2010) 207 A Crim R 34…
R v MJR
[2002] NSWCCA 129 Para 31

…ailing as at the date of commission of the offence charged when sentencing practice has moved adversely to an offence since that time ( R v MJR [2002] NSWCCA 129; 54 NSWLR 368 at [31] per Spigelman CJ, at [71] per Grove J and at [105] per Sully J). [65] Neither of the parties referred to any previous decisions of th…
Regina v Simpson
[1999] NSWCCA 367 Para 72

…imposed there should be a finding of special circumstances. The Crown in MFI 1 at paragraphs 34 to 39 submits that given the decision in R v Simpson (2001) 53 NSWLR 704 and the lack of evidence there is no proper grounds for a finding of special circumstances.…
House v R
[1936] HCA 40

…ount might be in a given case is a discretionary judgment for the Sentencing judge. Accordingly, an error of the type referred to in House v The King (1936) 55 CLR 499 must be shown. [44] Although the Respondent was not in what has been called rehabilitation custody the practical effects of her bail conditions were…
House v The King
63 WN 176

…appropriate discount might be in a given case is a discretionary judgment for the Sentencing judge. Accordingly, an error of the type referred to in House v The King (1936) 55 CLR 499 must be shown. [44] Although the Respondent was not in what has been called rehabilitation custody the practical effects of her bail condi…

Legislation cited in this decision · 4

Crimes (Amendment) Act 1989 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention
Firearms Act 1996 (TAS)
1 mention
Young Offenders Act 1997 (NSW)
1 mention

Medium Neutral Citation:	Regina v RP [2018] NSWDC 125
Hearing dates:	20 April 2018
Date of orders:	18 May 2018
Decision date:	18 May 2018
Jurisdiction:	Criminal
Before:	His Honour Judge G Lerve
Decision:	See [82]-[88]
Catchwords:	Sentence – offending when offender a juvenile but sentenced as an adult - onerous bail conditions – pre-sentence custody – intellectual functioning issues with offender
Legislation Cited:	Children (Criminal Proceedings) Act, 1987 Crimes Act, 1900 Crimes (Sentencing Procedure) Act,1999
Cases Cited:	RP v The Queen [2016] HCA 53 R v AA [2017] NSWCCA 84 R v Anderson [2012] NSWCCA 175 Brown v R [2014] NSWCCA 215 Bugmy v The Queen [2013] HCA 37 Butters v R [2010] NSWCCA 1 TC v R [2016] NSWCCA 3 R v Donald [2013] NSWCCA 238 Hili & Jones v The Queen [2010] HCA 45 Hampton v R [2014] NSWCCA 131. Hamilton v R [2016] NSWCCA 59 Kelly –v- R [2018] NSWCCA 44 Kennedy v R [2010] NSWCCA 260 Little v R [2018] NSWCCA 63 Locke v R (2010) 207 A Crim R 34 R v Niass unrep. NSWCACA 16 Nov 1988 Refaieh v R [2018] NSWCCA 72 BP v R [2010] NSWCCA 159. SHR v R [2014] NSWCCA 94 R v Simpson (2001) 53 NSWLR 704 Sullivan & Skillan v R [2008] NSWCCA 296 KT v R [2008] NSWCCA 51 Thammavongsa v R (2015) 251 A Crim R 342 R v Tuala [2015] NSWCCA 8 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	Director of Public Prosecutions RP
Representation:	Counsel: Mr P Kerr for the Director of Public Prosecutions Mr T Warr for the Offender Solicitors: Ms N Wojcik for the Director Mr D Barron for the Offender
File Number(s):	2012/330538, 2014/99541
Publication restriction:	Non publication of the name of the offender or the complainants or anything that may tend to identify them.