Citation: R v I.D. & O.N. [2007] NSWDC 51
Court: District Court of New South Wales
Date: 25 January 2007
Judge(s): Nicholson SC DCJ
Background
Two teenage males unlawfully entered the home of a single mother in Lakemba on the evening of 6 March 2005. Her five-year-old son was present. During the invasion, the offenders robbed the complainant at gunpoint and subjected her to ten separate sexual assaults, threatening to inflict actual bodily harm on her and her son by means of a handgun.
The offender identified as O.N. pleaded guilty in the Local Court to all eleven charges on his indictment, which included multiple counts of sexual intercourse without consent in circumstances of aggravation, all involving the use of an offensive weapon and committed in the company of the co-offender. The offender identified as I.D. pleaded guilty on the day set down for trial to three counts: armed robbery with break-out, and two counts of aggravated sexual assault (fellatio) under threat of harm to the complainant and her son.
Both offenders were juveniles at the time of the offences and at the time of sentence. Their names were suppressed under the Children (Criminal Proceedings) Act 1987, as were the identities of the complainant and her son. The sentencing remarks addressed a range of complex questions arising from the serious nature of the offending set against the youth of the offenders.
Legal Issues
- What was the appropriate assessment of the objective seriousness of the offences, including whether they fell at the mid-range or above for the purposes of the standard non-parole period?
- How should the standard non-parole period provisions of the Crimes (Sentencing Procedure) Act 1999 apply to these offences?
- What weight should be given to the subjective features of each offender, including their youth, prospects of rehabilitation, and guilty pleas?
- What discount was appropriate for each offender's guilty plea, and how did the timing of each plea affect that discount?
- How should the principle of totality operate across multiple serious counts to produce an appropriate aggregate sentence?
- What was the correct relationship between the minimum term (non-parole period) and the additional term (balance of parole) when sentencing youthful offenders?
- How should the court balance the sentencing objectives of punishment, deterrence, protection of the community, and rehabilitation in the context of juvenile offenders?
- Whether the offenders could be retained in juvenile detention beyond their twenty-first birthdays, given the non-parole periods set.
Decision
The court characterised the offending as extremely serious. The home invasion of a mother and her young child, the use of a firearm to threaten both the complainant and the child, and the sustained nature of the sexual assaults were identified as significant aggravating features. The court approached the most serious offence for each accused as the anchor for the sentencing exercise, with remaining sentences structured to reflect totality and to run concurrently or partially concurrently with the head sentence.
For O.N., who pleaded guilty in the Local Court to all eleven counts, the court applied a 25 percent discount for his early guilty plea. The court indicated that but for the plea, the head sentence would have been sixteen years. After the discount, the overall sentence was fixed at twelve years, with a non-parole period of four years, two months and eighteen days. The court deliberately set the non-parole period to expire the day before O.N.'s twenty-first birthday, expressing a clear intention that he remain in juvenile detention throughout that period and not be transferred to adult custody.
For I.D., whose plea came on the day of trial, the court applied a lesser discount of approximately 17.5 percent. The head sentence for the most serious count (the joint sexual assault) was assessed at twelve years before discount, producing an overall sentence of nine years and eleven months. A non-parole period of four years was set. The court also noted the complainant's relief at not being required to give evidence, treating that as a relevant consideration in the context of the plea, even though the plea was late.
The court engaged extensively with the principles applicable to juvenile offenders, acknowledging that rehabilitation carries particular weight when the offender is young, but finding that the gravity of the conduct required sentences that did not depart substantially from those that would apply to adult offenders committing equivalent crimes. The court addressed the appropriate ratio between the non-parole period and the balance of term, finding that special circumstances existed warranting longer-than-standard parole supervision, particularly given the availability of a sexual offenders' course at Baxter Juvenile Detention Centre.
Orders Made
O.N. (convicted on 11 counts):
- Head sentence (most serious count, count 11): 12 years imprisonment, with a non-parole period of 4 years, 2 months and 18 days, commencing 3 April 2005 and expiring 21 June 2009; balance of term expiring 3 April 2017
- Count 8: 11 years 3 months, non-parole period of 4 years 2 months and 18 days commencing 3 April 2005; balance of term expiring 2 July 2016
- Counts 2, 3 and 6 (penile penetration): 6 years each, non-parole period of 4 years from 3 April 2005; balance of term expiring 2 April 2011
- Counts 1, 5, 7 and 10 (fellatio): 4.5 years each, non-parole period of 3 years from 3 April 2005; balance of term expiring 2 October 2009
- Counts 4 and 9 (being in company during co-offender's assault): 1.5 years each as a fixed term (already expired at time of sentence)
I.D. (convicted on 3 counts):
- Count 1 (robbery in company whilst armed, with break-out): sentence of 4 years 11 months, non-parole period of 3 years from 21 June 2005, expiring 20 June 2008; balance of term expiring 20 May 2010
- Count 2 (first fellatio, acting alone): 4 years 11 months, non-parole period of 3 years from 21 June 2005; balance of term expiring 20 May 2010
- Count 3 (joint sexual assault, fellatio): overall sentence of 9 years 11 months; non-parole period of 4 years expiring 20 June 2009; balance of term expiring 20 May 2015
Key Takeaways
- The District Court confirmed that the gravity of offending can be so serious that rehabilitation, while always relevant for juvenile offenders, does not necessarily displace sentences that closely approach those applicable to adult offenders.
- A guilty plea entered on the day of trial attracted a discount of approximately 17.5 percent, materially less than the 25 percent discount applied to the co-offender's early plea in the Local Court, reflecting the established principle that the utilitarian value of a late plea is reduced.
- Where juvenile offenders face substantial non-parole periods approaching or extending to their twenty-first birthday, the sentencing court must actively consider custodial placement and, if necessary, adjust commencement dates to avoid transfer to adult custody contrary to the sentencing intention.
- Special circumstances justifying a longer balance of term relative to the non-parole period were found to exist, primarily to allow for extended parole supervision and access to a dedicated sexual offenders' rehabilitation programme within juvenile detention.
- The principle of totality required the court to structure multiple concurrent and partially concurrent sentences so that the aggregate did not exceed what was just and appropriate for the overall criminality, rather than simply aggregating the individual sentences arithmetically.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 11, 18, 19
- Criminal Procedure Act 1986 (NSW), s 291
- Crimes Act 1900 (NSW), s 61JA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 54A, 54B
Cases:
- The Queen v Gladue [1999] 1 SCR 688
- R v Cuthbert (1967) 2 NSWLR 329 (NSW CCA)
- R v Rushby [1977] 1 NSWLR