R v RJ (No.5) [2024] NSWDC 26

District Court New South Wales

Medium Neutral Citation: R v RJ (No.5) [2024] NSWDC 26 Hearing dates: 08 February 2024 Date of orders: 08 February 2024 Decision date: 08 February 2024 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph [86] Catchwords: CRIMINAL LAW – sentencing – child sexual offences perpetrated by offender on his granddaughter Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Baker v R [2022] NSWCCA 195 Bhatia v R [2023] NSWCCA 12 Culbert v R [2021] NSWCCA 38 Davidson v R [2022] NSWCCA 153 DBW v R [2007] NSWCCA 236 GL v R [2022] NSWCCA 202 Muldrock v R (2011) 244 CLR 120 R v Lau [2022] NSWCCA 131 R v Lauren Cranston [2023] NSWSC 454 RH v R [2019] NSWCCA 64 Texts Cited: Nil Category: Sentence Parties: Rex RJ Representation: Counsel: A O'Connor for the ODPP S Schaudin for the offender

Solicitors: ODPP Takchi and Associates File Number(s): 2019/305678 Publication restriction: Non-publication of the victim's name and the names of others who might tend to disclose that name

REMARKS ON SENTENCING 1. On 16 May 2023, after a trial at Gosford lasting nearly two weeks and presided over by me, a jury found the offender guilty of sexual offences committed against his granddaughter arising from 6 separate incidents. There were 12 counts on the indictment, but some of those (counts 2, 8, 10 and 12) were alternative counts. In the event, the jury found the offender guilty on all (primary) counts on the indictment. 2. The offences were as follows: * One count (count 1) of sexual intercourse with the victim, a child under the age of 10 years (8 years) in circumstances of aggravation, namely that she was under the authority of the offender, contrary to s 66A(2) of the Crimes Act 1900 (NSW) (the Crown also relying upon s 80AF of the Crimes Act). For this offence, the maximum penalty is life imprisonment. The standard non-parole period is 15 years' imprisonment. * four counts (counts 3-6 (incl)) of indecent assault committed against a child then aged under the age of 16 years (in all cases, 11 years), contrary to s 61M(2) of the Crimes Act 1900 (NSW). For this offence, the maximum penalty is 10 years' imprisonment with a standard non-parole period of 8 years' imprisonment. * three counts (counts 7, 9 & 11) of aggravated sexual intercourse against the child, then above the age of 10 years but under the age of 14 years (in all cases, 12 years), contrary to s 66C(2) of the Crimes Act 1900 (NSW). For this offence, the maximum penalty is 20 years' imprisonment with a standard non-parole period of 9 years' imprisonment. 1. The offender is now to be sentenced. The matter had been scheduled for sentencing on 11 August 2023, but shortly before that date, the offender's Counsel and solicitor withdrew. On that date, the accused (eventually) indicated that he wished to engage alternative representation and, with the Crown's consent, an adjournment was granted. The sentencing was adjourned to 8 December 2023. Then, in late November 2023, the solicitor indicated that a new team of lawyers had been engaged and the offender would not be ready for the sentencing proceeding in December and, by consent, the proceeding was adjourned again to today. 2. The principles that a sentencing judge will apply following verdicts of guilt by a jury were recently conveniently re-stated by Payne JA (when sitting in the Common Law Division) in R v Lauren Cranston [2023] NSWSC 454 at [4], which I respectfully adopt. His Honour observed (citations omitted): "(1) A sentencing judge has a duty to make, as far as possible, findings of fact relevant to the issues that will inform the sentence …; (2) Sometimes, however, it may be impossible for the sentencer to resolve a given factual question in a way that tends to either increase or decrease the sentence. In that case, the sentencer must leave that matter to one side and proceed on the basis of what can be found ….; (3) The sentencing judge is not constrained to matters formally proved or admitted by one or other of the parties during the sentencing hearing ….; (4) The Court is not bound to accept one party's view of the facts simply because that view is uncontradicted by any other party …. Sometimes, a party's uncontradicted interpretation of the facts may be rejected because it is implausible …; (5) If a party at sentencing seeks to rely on a particular fact, that party has the onus of proving the fact in question: …. There is, however, no general joinder of issue in sentencing and, unlike at the trial, no generalised onus of proof: …. (6) If the prosecution seeks to rely on a fact, they must prove it beyond reasonable doubt. If the offender seeks to rely on a fact, the standard of proof is on the balance of probabilities ….; (7) After a jury returns a verdict of guilty, the sentencer is constrained to making findings of fact that are consistent with the jury's verdict ….; (8) A sentencer cannot know, in many cases, exactly what facts the jury found or what evidence they accepted. The sentencer is constrained by a verdict only when that verdict, by necessary implication, reveals that the jury accepted particular evidence or resolved facts in a particular way ….; (9) Within this constraint, the sentencer can make findings as they see fit …. There is no requirement to accept all of the Crown's case as put to the jury: …. Nor is the judge required to take a view of the facts most favourable to the offender: …."