Citation: Regina v Nathan Robert Pascoe [2006] NSWDC 102
Court: District Court of New South Wales
Date: 10 March 2006
Judge(s): Nicholson SC DCJ
Background
In July 2004, the offender, a 24-year-old man, and a 14-year-old girl were at a private residence in Dubbo where both had consumed alcohol. The offender had drunk the majority of a bottle of tequila. The complainant woke to find herself naked in bed with the offender engaged in vaginal intercourse with her.
The offender then turned the complainant over and proceeded to have anal intercourse with her, despite her repeated verbal refusals, her crying, and her statements that it was causing her pain. The offender made dismissive remarks and continued until he chose to stop. The complainant dressed and left. She later reported the incident to police.
The offender was charged with two counts of sexual intercourse with a child aged 14 to 16 years under s 66C of the Crimes Act 1900: the first count relating to the vaginal intercourse and the second to the anal intercourse. He pleaded guilty to both counts.
Legal Issues
- What was the objective criminality of each offence, assessed against comparable offending?
- What weight should be given to the aggravating features of the offending conduct, including the absence of consent, expressions of pain, and the offender's remarks?
- How should the court treat the self-serving history recorded in a forensic psychological report when assessing subjective factors?
- What discount was appropriate for the guilty plea?
- Were special circumstances present, justifying an adjustment to the standard ratio of non-parole period to overall sentence?
- How should the two sentences be structured to reflect totality and the distinct criminality of each offence?
Decision
Objective criminality: The sentencing judge identified the purpose of s 66C as the protection of children whose physical, emotional, and psychosexual development is immature, and noted the stark power imbalance between a 24-year-old man and a 14-year-old girl. The aggravating features of the anal intercourse offence were significant: the complainant actively refused, expressed pain, and the offender responded with dismissive and callous remarks while continuing. These features elevated the seriousness of the second count considerably above the first.
Subjective factors and the psychological report: The court applied the principle from R v Qutami in treating the self-serving account given by the offender to the forensic psychologist with caution. While the court accepted that the offender had consumed a substantial quantity of alcohol, it noted he retained sufficient capacity to sustain an erection, which limited the weight alcohol could bear on his culpability. The offender was assessed as presenting some risk of recidivism, and the court noted the need for rehabilitation programmes focused on respectful attitudes toward women.
Guilty plea and discount: A discount of 17.5 percent was applied to reflect the utilitarian value of the guilty plea. The court acknowledged the plea was not at the earliest opportunity but still carried meaningful sentencing value.
Structure of sentence: The court found special circumstances existed, warranting a longer than usual parole period to facilitate supervision, rehabilitation, and reintegration. The vaginal intercourse offence was treated as less serious and dealt with by way of a fixed term. The anal intercourse offence attracted the principal sentence, comprising a non-parole period and a balance of term. The sentences were structured to run concurrently, consistent with the totality principle.
Orders Made
- Count 1 (vaginal intercourse): Fixed term of 12.5 months, commencing 10 March 2006, expiring 24 March 2007.
- Count 2 (anal intercourse): Non-parole period of 15 months commencing 10 March 2006, expiring 9 June 2007; balance of term of 15 months, expiring 9 September 2008. Overall sentence: 2 years and 6 months.
- Release from custody ordered on 9 June 2007.
- Supervision ordered pursuant to s 51 of the Crimes (Sentencing Procedure) Act 1999, with parole conditions including compliance with Probation and Parole directions.
- Probation and Parole requested to consider counselling and treatment programmes focused on the offender's attitudes toward women.
Key Takeaways
- The District Court confirmed that objective criminality under s 66C is assessed by reference to the degree of exploitation of the complainant's youth, the power imbalance between adult and child, the absence of consent, and the nature and circumstances of the sexual acts.
- Aggravating features such as a complainant's active refusal, expressions of pain, and an offender's callous or dismissive responses during the offence are properly weighed in elevating the seriousness of an offence, consistent with the principle in De Simoni v The Queen.
- Self-serving accounts provided by an offender to a forensic psychologist attract scrutiny and limited weight at sentence, in accordance with the approach in R v Qutami.
- Special circumstances can be found where the nature of the offence and the offender's rehabilitation needs require an extended period of supervised parole beyond the standard ratio.
- Where an offender faces two separate counts arising from a single event, sentences structured to run concurrently must still reflect the distinct criminality of each offence, with totality operating to ensure the aggregate is not disproportionate.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 51
- Children (Criminal Proceedings) Act 1987 (NSW), s 11
Cases:
- R v Gladue [1999] 1 SCR 688
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] 1 NSWLR 594
- R v Hayes [1984] 1 NSWLR 740
- R v Zappalla (unreported, NSW CCA, 5 November 1993)
- R v Sca (unreported, NSW CCA, 13 August 1990)
- De Simoni v The Queen (1981) 146 CLR 282
- R v SG [2003] NSWCCA 220
- R v Priestly (unreported, 3 June 1997)
- R v Buttsworth [1983] 1 NSWLR 658
- R v Qutami [2001] NSWCCA 353
- R v Palu [2002] NSWCCA 381
- R v Todd [1982] 2 NSWLR 517
- R v Fahda [1999] NSWCCA 262
- Pearce v The Queen (1998) 194 CLR 610