Download Table of Sexual Assault Cases Heard at the NSWCCA and more Lecture notes Law in PDF only on Docsity!
Sexual Intercourse Without Consent
Victim Aged Under 16 Years
s.61D(1) (NSW) Crimes Act
s 61D(1) Sexual intercourse with another person without consent of the other person knowing the other person does not consent Maximum Penalty: 10 years (where victim aged under 16 years) Commenced: 1 4.7. Repealed: 17.3. s 61D(1A) Sexual intercourse with another person without consent of the other person knowing the other person does not consent – where other person under the age of 16 years and under authority of offender Maximum Penalty: 12 years Commenced: 23.3. Repealed: 17.3. s 61D(1B) Sexual intercourse with another person without consent of the other person knowing the other person does not consent - in company Maximum Penalty: 12 years (where victim aged under 16 years) Commenced: 21.2. Repealed: 17.3. Note: s.25AA (NSW) Crimes (Sentencing Procedure) Act applies to sentences imposed on or after 31.8.2018: (1) A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.
(age if known) Clarke NSWCCA 18.2. 4 x s.61D(1) 2 x s.61E(2) s. PG 6y 4y 4y Total 10y NPP 3y 6m
AA
6y 1y 4y Total: 6y NPP 2y minor traffic ( 1981 ) – sexually assaulted children of de facto wife and friends - all offences committed in home of offender - element of breach of trust Contrition On appeal - sentences imposed for indecent assaults greater than maximum penalty Marwick (31) NSWCCA 17.3. 2 x s.61D(1) s.61E(2) PG 4y 6m 2y 6m Total 7y NPP 1y 9m
AA
4y 6m 6m Total 5y NPP 18m minor traffic ( 1982 ) - sexually assaulted 9y son of de facto while in bed - committed fellatio on complainant and placed finger in anus Prior good character O’Donoghue (16) NSWCCA 29.6. s.61D(1) s. PG 6y 6m 2y 6m Total 9y NPP 4y
AA
6y 6m 2y 6m Total: 6y 6m NPP 4y prior convictions - on bond ( 1983 ) - with co-offender attacked 14y male of frail build and almost blind - forced anal intercourse - no reason for attack - attack took place over three locations - threatened violence Dillon (33) NSWCCA 7.2. s.61D(1) s.61D(1) Att s.61D(1) PG 7y 4y 3y Total: 11y NPP 4y
AA
7y 4y 3y Total: 7y NPP 3y irrelevant Drove 14y female home from party and gave her alcohol - drove her to country and sexually assaulted her - forced fingers and then penis into vagina - attempted to force penis into mouth Problems with alcohol addiction
(age if known) Vaughan (69) NSWCCA 4.3. s.61D(1) Assault w/ act indecency Assault w/ act indecency PG 5y 6m 18m 2y Total: 9y NPP 3y 9m AD Nil ( 1980 - 1983 ) - full facts not provided - complainant aged 8- 9 y
- digital penetration - abuse of position of trust - number of other assaults. Kozakiewicz NSWCCA 11.6. 3 x s.61D(1A) 4 x s.61E(2A) PG 4y 8m NPP 3y 6m 6m Total: 5y 2m NPP 4y AD Sexually assaulted step daughter aged 11 - 12y over two years Davis (71) NSWCCA 20.8. 2 x s.61D(1) Indecent Assault
PG
Total MT 3y AT 1y
AA
MT 2y AT 8m 1y Total MT 2y AT 8m Nil ( 1981 - 1989 ) - two offences of digital penetration upon adopted grand-daughter aged 15y - indecent assault occurred when complainant aged 6y - assaults on complainant and other female family members took place over number of years On appeal – original count of s.61D(1A) replaced by s.61D(1). Dent (28-34 at offences) NSWCCA 14.3. 4 x s.61D(1) 2 x s. 2 x s.81A s.61E s.61E(2) PG MT 2y 3m AT 9m (concurrent fixed sentences) Crown AA MT 3y AT 1y (concurrent fixed sentences) Dishonesty offences ( 1980 - 1986 ) – sexually assaulted stepson aged 9 - 15y – indecent touching while playing ‘tickling game’ – digital penetration of anus – fellatio of complainant and forced fellatio of offender Police officer – protective custody
(age if known) Tillman NSWCCA 17.2. s.61D(1) 2 x Act of indecency
VG
PG
MT 4y 6m AT 18m FT 2y (concurrent) AD ( 1989 ) – sexually assaulted 10y daughter of de facto – indecent touching of vagina and penile penetration Marshall NSWCCA 21.4. 3 x s.61D(1) VG MT 2y 3m AT 9m AD nil ( 1984 - 1986 ) – sexually assaulted wife’s niece aged 11-13y – penile/oral intercourse - complainant came to Australia as a ‘boat person’ and offender involved in assisting them Good character E C (18 at sentence) NSWCCA 11.6. s.61D(1) PG MT 18m AT 3y 6m
AA
MT 18m AT 2y Record for serious criminal offences ( 1990 ) – forced fellatio from 15y inmate of detention centre at knifepoint DJM NSWCCA 13.8. 4 x s.61D(1) PG MT 3y AT 4y AD ( 1979 - 1983 ) - sexually assaulted daughter aged 6 - 10y – representative counts – penile penetration of vagina Lengthy delay DTB NSWCCA 24.11. 3 x s.61D(1) 3 x s.61D(1A) PG Total: MT 7y AT 1y 8m AD Nil similar ( 1985 - 1990 ) – sexually assaulted step-daughter aged 11-16y
- penile/vaginal penetration – pattern of offending – became pregnant and gave birth to son Martinez NSWCCA 23.3. 2 x s.61D(1A) VG MT 6y AT 2y AD Record including personal violence ( 1987 - 8 ) – sexually assaulted stepdaughter aged 10-11y – part of ongoing sexual misconduct Political prisoner in El Salvador suffering torture M (63 at sentence) NSWCCA 15.9. 2 x s.61D(1) 4 x s.61E(1) VG Total: MT 3y 6m AT 6m AD Sexually assaulted three girls aged 10y, 6y and 5y living in same apartment building as offender – digital penetration and fellatio Poor health
(age if known) King (76 at appeal) NSWCCA 2.4. s.61D(1) 3 x s.76A / 61E(2) 4 x s.76 / 61E(1) 2 x s.61M(2) s.61E(2) PG 2y PD 2y GBB Crown AA MT 12m AT 12m Nil relevant ( 1979 - 1992 ) - sexually assaulted three granddaughters – one complainant aged 5y when offences commenced Hardy (24-32) NSWCCA 5.6. 7 x s. 3 x s. 5 x s.61D(1) Att s.61D(1) Att s.61D(1) s.61E(1A)
PG
PG
VG / PG
PG
PG
PG
FT 3y FT 2y MT 4y AT 4y MT 4y AT 4y FT 18m FT 12m Total: MT 7y AT 4y AD Nil ( 1986 ) - Teacher assaulted male child aged 8-16y – close family friend Ware (17 at offence) NSWCCA 9.7. s.61D(1) 2 x s.61E(1) s.61E(2) PG MT 18m AT 6m (each)
AA
FT 6m (each – concurrent) Nil ( 1983 ) – while living with complainant’s family sexually abused 8 - 9y niece – digital penetration Attempted to bring misconduct to attention of police - rehabilitation AK (13-20 at offences) NSWCCA 29.10. 2 x s.61D(1) PG MT 3y AT 3y AD ( 1983 ) sexually assaulted 7y sister – digital penetration of vagina then forced fellatio until ejaculation ( 1989 ) forced 13y complainant to have penile/vaginal intercourse then threatened her with knife Not isolated offences
(age if known) G NSWCCA 10.12. 2 x s.61D(1) 6 x s.61E(1) VG MT 4y AT 3y (concurrent sentences) AD ( 1978 - 1988 ) – sexually assaulted stepdaughter aged 9-18y V NSWCCA 24.2. 3 x s.61D(1) 4 x s. PG MT 3y AT 3y 18m (concurrent) AD nil ( 1979 - 1984 ) - sexually assaulted two stepdaughters aged 9- 13y – representative of extensive sexual misconduct – digital penetration and indecent touching Heptonstall (37-42) [1999] NSWCCA 54 4 x s.61D(1) 7 x s.61E(1) PG MT 5y AT 1y 8m FT 3y Total: MT 8y AT 1y 8m
AA
MT 4y 3m AT 2y 5m FT 3y Total: MT 7y 3m AT 2y 5m nil ( 1981 - 1986 ) – offences committed on four girls entrusted into care of offender for holidays – complainants aged 10-14y - indecent touching while showering with complainants – gave complainants tablets to fall asleep and lowered pants – showed lewd videos – penile and digital penetration - offences involved planning and calculation Rodgers (37-51 at offences - 63 at appeal) [1999] NSWCCA 260 s.61D(1) 3 x s.61D(1) 5 x s. 2 x s.61E(1) Sched: 11 x indecent assault PG MT 7y 6m AT 2y 6m FT 5y FT 2y FT 2y (concurrent)
AA
MT 5y 6m AT 2y 6m FT 5y FT 2y FT 2y (concurrent) Priors for indecent assault in New Zealand ( 1974 - 1990 ) – Church camp leader sexually assaulted six male complainants aged 6 - 12y – indecent touching of complainant’s penis – fellatio on complainant – thrusting penis between legs of complainant – breach of trust Most offences committed after absconding from bail
(age if known) Hayes (42-3 at offences - 59 at appeal) [2001] NSWCCA 410 7 x s.61D(1) s.61D(1) 3 x s.61E(1) PG MT 3y AT 1y MT 12 AT 2y FT 2y Total: MT 4y AT 2y AD Offences committed while on bail or recognisance for sexual offence ( 1984 - 5 ) – two complainants Health issues MJR (2002) 130 A Crim R 481 NSWCCA s.61D(1A) s.61D(1A) 2 x s.61D(1) s.61E(1A) s.61E(1) Sched: 10 similar offences
PG
9y NPP 6y FT 5y FT 4y FT 2y FT 2y (concurrent sentences)
AA
6y 6m NPP 5y FT 5y FT 4y FT 2y FT 2y (concurrent sentences) ( 1983 – 1989 ) Sexually assaulted two daughters aged 12-16y over seven years - digital penetration of external genitalia and fondling of breasts – youngest daughter suffering cerebral palsy and associated intellectual impairment Slater (2003) 142 A Crim R 322 NSWCCA s.61D(1) s.61D(1) [8y] Sched: 4 sexual offences
PG
4y NPP 2y FT 2y 6m Total: 5y NPP 3y AD (1982–1991) – sexual intercourse with 12y daughter – second count involved intercourse with daughter aged 21y without her consent – committed four further acts when complainant aged 13, 16 and 17y Sheehan [No.2] (61 at sentence) [2006] NSWCCA 332 s.61D(1) VG 7y 6m NPP 5y
AA
6y NPP 4y Significant record – old with no sex offences (1981-1986) - Penile intercourse with 10-11y step-daughter – not isolated assault – violence and fear Originally sentenced for 7 additional offences – successful conviction appeal. Ill health
(age if known) Lozanovski (56 at sentence) [2006] NSWCCA 143 s.61D(1) s.61D(1) s.61D(1) 3 x s.61E(1) s.90A s.61L
VG
PG
3y 6m NPP 12m 3y NPP 2y 3y 6m NPP 2y FT 6m – 18m FT 18m FT 12m Total: 8y 6m NPP 6y
AA
2y 6m NPP 12m 3y NPP 2y 3y 6m NPP 2y FT 6m – 18m FT 18m FT 12m Total: 5y 6m NPP 4y nil (1982-1989) - Sexually assaulted niece aged 9 - 16y – fondling of breasts and digital penetration – not isolated incidents (1996) – fondled complainants breasts when she was 22y GG (2010) 204 A Crim R 125 NSWCCA 3 x s.61D(1) 2 x s.61E(1) VG Total: 3y 6m NPP 2y 3m AD (1984-1986) – sexually assaulted step-daughter aged 12-14y Hughes (36 at first offence) [2015] NSWCCA 330 (2015) 93 NSWLR 474 2 x s.61D(1) 4 x s.61E(1) 2 x s.61E(1A) s.61E(1A) s.61E(2) VG 5 y 4y FT 2y 6m FT 2y 9m FT 1y Total aggregate: 10y 9m NPP 6 y AD Nil ( 1984 – 1990 ) - numerous sexual assaults against four friends of offender’s daughter - digital penetration of complainant aged 14- 15 y - rubbed clitoris of complainant aged 14- 15 y – indecent assaults included forcing complainant aged 6-8y to rub penis until ejaculation, rubbing over complainant’s vagina with penis, exposing penis to complainant, and rubbing penis against complainant’s face - objective seriousness within most serious category - opportunistic, persistent and calculated - abuse of trust and exploitation of naivety
