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District Court 2 February 2007

R v LESSLIE

[2007] NSWDC 387

Sexual offences
CRIMINAL LAW SENTENCE SENTENCING ORDERS INDECENT ASSAULT CHILD

Citation: R v Lesslie [2007] NSWDC 387
Court: District Court of New South Wales
Date: 2 February 2007
Judge(s): Finnane QC DCJ

Background

The offender, an adult male, faced an indictment containing five charges relating to the indecent assault of a young girl in whose care he stood. He initially pleaded not guilty to all five counts. Following negotiations with the Crown, which consulted the complainant before accepting the outcome, he ultimately pleaded guilty to one count of indecent assault.

The investigation by NSW Police was heavily criticised by the sentencing judge. The original police interview with the complainant was lost, a significant delay followed before a second interview was conducted, and further years passed before proceedings were commenced. The judge noted that these failures placed enormous strain on the complainant, while being careful to observe that none of the police conduct could be attributed to the offender.

The agreed facts for the single guilty plea involved physical contact of the offender rubbing the complainant's body near her vaginal area over her clothing. The court read a victim impact statement, which it described as deeply distressing.

  • What sentence was appropriate for a single count of indecent assault of a child, having regard to the nature of the offending, the offender's personal circumstances, and his plea of guilty?
  • Whether a term of imprisonment was warranted, or whether a good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was the appropriate sentencing disposition.

Decision

Finnane QC DCJ identified the offending as a serious breach of trust, noting that the great majority of child sexual offences are committed by people known to the victim, not by strangers. The specific conduct, rubbing near the vaginal area over clothing, was placed in the middle of the spectrum of indecent assault: more serious than inappropriate kissing or incidental touching, but less serious than attempted penetration beneath clothing.

The judge gave significant weight to several mitigating factors. The offender expressed genuine remorse in court, describing himself in terms that the judge accepted as reflecting true contrition, which the judge observed was rare in cases of this kind. He cared for four of his own children, the Department of Community Services was satisfied with those arrangements, and he was an active volunteer bush fire fighter. His prior criminal history was considered largely irrelevant to the present offending.

The court declined to impose a term of imprisonment. The judge was explicit that the sentence was limited to the single offence to which the offender had pleaded guilty, and that a different outcome would have followed had he been convicted on the more serious charges that were not proceeded with. A five-year good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999, coupled with supervision by the Probation and Parole Service, was considered the most appropriate disposition in all the circumstances.

Orders Made

  • The offender was sentenced to enter into a good behaviour bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of five years, from 2 February 2007 to 1 February 2012.
  • It was a condition of the bond that the offender place himself under the supervision of the Probation and Parole Service and undertake such programmes as that Service considered necessary.
  • The Probation and Parole Service was permitted to terminate supervision at any time.
  • The offender was required to report to the officer in charge of the Probation and Parole Service at Taree within seven days of the sentencing date.

Key Takeaways

  • The District Court confirmed that sentencing for indecent assault of a child must be calibrated to the specific nature of the conduct, with physical contact near the vaginal area over clothing treated as more serious than incidental touching but less serious than attempted penetration.
  • A non-custodial disposition under section 9 of the Crimes (Sentencing Procedure) Act 1999 remains available for child indecent assault where the offending is limited to a single count and the offender demonstrates genuine remorse, good character, and community contributions.
  • Genuine and rare acceptance of responsibility, expressly contrasted by the court with the common pattern of denial in similar cases, weighed materially in the offender's favour at sentencing.
  • Systemic failures in a police investigation, however serious, cannot be attributed to an offender and play no part in determining the appropriate sentence.
  • Under the applicable child protection legislation, a guilty plea to a child sex offence triggered mandatory registration, which in turn restricted the offender's contact with children outside his own household.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds without proceeding to conviction)

Cases cited: None cited in the judgment.