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District Court 23 February 2007

R v Carlton

[2007] NSWDC 71

Sexual offences
CRIMINAL LAW SENTENCE AFTER TRIAL SEXUAL ASSAULT BY AN ADULT UPON A CHILD MULTIPLE OFFENCES

Citation: R v Carlton [2007] NSWDC 71
Court: District Court of New South Wales
Date: 23 February 2007
Judge(s): Nield DCJ

Background

The offender, a man aged 34 at the time of the offences, was tried before a jury in the District Court at Bathurst on charges arising from events on 20 August 2005. The indictment contained eight counts, including six counts of aggravated sexual intercourse without consent and one count of attempted aggravated sexual intercourse without consent, all involving a complainant under the age of 16 years. The offender pleaded not guilty to all counts.

After a five-day trial in which 16 Crown witnesses gave evidence, the jury convicted the offender of four of the eight counts. Those four convictions were each for aggravated sexual intercourse without consent upon a child under the age of 16 years, an offence under s 61J(1) of the Crimes Act.

The sentencing proceedings then addressed the appropriate penalty for the four convictions, having regard to the offender's personal circumstances, criminal history, mental health, and the principles governing the standard non-parole period.

  • Whether evidence obtained during a police search of premises was admissible, given a challenge to the validity of the search warrant under the Search Warrants Act
  • What weight to give the standard non-parole period for aggravated sexual intercourse upon a child under the age of 16 years under the Crimes (Sentencing Procedure) Act 1999
  • Whether the four sentences should be served concurrently, consecutively, or partly concurrently and partly consecutively
  • Whether special circumstances existed to justify a reduction of the non-parole period below the statutory benchmark, with a corresponding extension of the parole period

Decision

Admissibility of the search warrant evidence: Before trial, the offender challenged the admissibility of evidence from a police search, arguing the warrant application had not been verified on oath or affirmation as required by s 11 of the Search Warrants Act. Nield DCJ conducted a voir dire and rejected the challenge. His Honour found that because the application was made by telephone under s 12 of the Act, the oath or affirmation requirement did not apply, and the warrant had been validly issued.

Standard non-parole period: Under the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period for the relevant offence is 10 years. His Honour found no features that warranted departure from that standard starting point and assessed the appropriate total sentence for each offence at 13 years and 4 months, derived from the 10-year standard non-parole period.

Concurrency versus accumulation: The Crown submitted that at least partial accumulation was appropriate to reflect the fact that four separate and distinct offences had been committed. The offender's counsel argued for full concurrency, on the basis that the offences were committed by the same offender against the same complainant over a relatively short period. Nield DCJ accepted the offender's submission and ordered all four sentences to be served concurrently.

Special circumstances: The offender argued that his diagnosed schizophrenia and his classification as a "non-association" prisoner constituted special circumstances justifying a reduction of the non-parole period. His Honour rejected the mental illness submission but accepted that the non-association classification would make custody more onerous. On that basis, the non-parole period was reduced to 8 years and 6 months, with the parole period extended to 4 years and 10 months.

Orders Made

  • The offender was convicted of each of the four counts of aggravated sexual intercourse upon a child under the age of 16 years.
  • For each offence, sentenced to imprisonment for 13 years and 4 months.
  • Non-parole period fixed at 8 years and 6 months, commencing 21 August 2005 and expiring 20 February 2014 (the date of eligibility for parole).
  • Parole period of 4 years and 10 months, commencing 21 February 2014 and expiring 20 December 2018.
  • All four sentences to be served concurrently.
  • The offender to be subject to supervision by the NSW Parole Service during the parole period.

Key Takeaways

  • The District Court confirmed that where a telephone search warrant application is made under s 12 of the Search Warrants Act, the oath or affirmation requirement in s 11 does not apply, and a warrant issued in those circumstances may be valid.
  • Where multiple offences are committed by the same offender against the same complainant over a short period, full concurrency of sentences may be appropriate, even when the Crown argues for partial accumulation to reflect the separate nature of each offence.
  • Classification of a prisoner as "non-association" (meaning they must be kept separated from other prisoners) was accepted as a special circumstance capable of reducing the non-parole period, on the basis that it makes custody more onerous.
  • A diagnosed mental illness did not, on the facts here, amount to a special circumstance for sentencing purposes, particularly where the statutory parole period already provided a substantial supervision period.
  • The standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 operated as the genuine starting point for sentencing: absent features warranting departure, the court applied it directly to arrive at the head sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1) (aggravated sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A (sentencing purposes and aggravating/mitigating factors)
- Search Warrants Act (NSW), ss 11, 12, 15A

Cases: No cases were cited in the portions of the judgment provided.