Regina v DJS [2001] NSWCCA 189

New South Wales Court of Criminal Appeal

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 Luland DCJ OFFICER :

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."