AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Local Court 23 November 2007

DPP v GRW

[2007] NSWLC 29

Sexual offences
INDECENT ASSAULT GROSS INDECENCY SOLICIT TO AN ACT OF GROSS INDECENCY AGGRAVATING FACTORS IN SENTENCING PSYCHIATRIC EVIDENCE

Citation: DPP v GRW [2007] NSWLC 29
Court: Local Court of New South Wales (Downing Centre)
Date: 23 November 2007
Judge(s): Chief Magistrate G L Henson

Background

The offender faced six charges arising from two separate series of sexual offences against two child victims. The first series involved three offences in 1989 against an 11-year-old boy who was the younger brother of the offender's then-wife, committed while the offender was babysitting. The second series involved three offences between 2001 and 2005 against a girl aged between approximately 5 and 9 years old, who was the offender's goddaughter.

The 1989 offences were charged under provisions of the Crimes Act 1900 that have since been repealed, each carrying a maximum penalty of two years imprisonment. The later offences were charged under section 61M(2) of the Crimes Act 1900, which carries a maximum penalty of seven years, subject to the Local Court's jurisdictional limits.

The offender denied the allegations when interviewed by police in December 2006. However, after participating in the Criminal Case Processing scheme, he entered pleas of guilty to all six charges.

  • What discount, if any, should apply to the sentence for the utilitarian value of the early guilty plea?
  • What aggravating and mitigating factors were relevant under section 21A of the Crimes (Sentencing Procedure) Act 1999?
  • What weight should be given to psychiatric evidence, including evidence of the offender's mental health condition, in determining the appropriate sentence?
  • Was a suspended sentence appropriate given the offender's personal circumstances and prospects for rehabilitation?
  • How should the sentences for the 1989 offences and the 2001 to 2005 offences be structured, including questions of concurrency and cumulation?

Decision

Chief Magistrate Henson applied a 25% discount for the utilitarian value of the guilty plea, treating the plea as having been entered at the earliest practicable stage. The Magistrate emphasised that the discount is not a fixed entitlement but falls within a range of 10 to 25%, with the timing of the plea being the primary determinant, consistent with the guideline judgment in R v Thomson and Houlton. A significant discount was justified here by the expedition of the plea and the removal of any need for either child victim to give evidence and be cross-examined.

On aggravating and mitigating factors, the Magistrate considered matters including the age and vulnerability of the victims, the offender's position of trust as a babysitter and godfather, and the period over which the offending occurred. Psychiatric evidence was considered in the context of whether it diminished the offender's moral culpability or supported rehabilitation as a sentencing objective, but the Magistrate declined to give it overriding weight.

The Magistrate firmly rejected a suspended sentence. Applying the reasoning in R v Taylor, the court held that where general deterrence is of particular importance, a suspended sentence is not appropriate. The offender's changed personal circumstances and prospects for prolonged therapeutic treatment were found insufficient to displace general deterrence as the paramount sentencing consideration for offences of this nature.

Sentences for the three 1989 offences were set at six months each, to be served concurrently. The sentences for the three later offences were structured with a non-parole period of 12 months and a total term of 16 months, to run concurrently with each other but cumulatively upon the 1989 sentences. The total effective period of full-time imprisonment was 18 months.

Orders Made

  • The offender was convicted on all six charges.
  • Three concurrent sentences of six months imprisonment for the 1989 offences, commencing forthwith.
  • Three concurrent sentences of 16 months imprisonment (non-parole period of 12 months) for the 2001 to 2005 offences, each commencing 22 May 2008, cumulative upon the 1989 sentences.
  • Total effective term of imprisonment: 18 months, with a 12-month non-parole period.
  • The offender was made eligible for release on parole on 21 May 2009, subject to supervision by the Probation and Parole Service.
  • Suspended sentence declined.

Key Takeaways

  • A guilty plea discount is not a fixed 25% entitlement. Under Thomson and Houlton, the discount falls within a range of 10 to 25%, with the timing of the plea as the primary factor determining where in that range a case falls.
  • General deterrence can be the paramount sentencing purpose in child sexual assault matters, and where that is so, a suspended sentence will generally be inappropriate regardless of the offender's personal circumstances or rehabilitation prospects.
  • Psychiatric evidence goes to questions of moral culpability and rehabilitation but does not automatically displace other sentencing objectives, particularly general deterrence, in serious sexual offending cases.
  • Where offences span different legislative regimes, the applicable maximum penalties at the time of each offence govern the sentencing parameters for that charge.
  • Cumulative and concurrent sentencing in multi-offence matters in the Local Court remains subject to the five-year total term cap imposed by section 58(1) of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), sections 78Q(1), 78Q(2), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 3A, 21A, 22, 58

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Harmouche [2005] NSWCCA 398
- R v Johnson [2004] NSWCCA 76
- R v JDB (2005) 153 A Crim R 164
- R v Pearson [2005] NSWCCA 116
- R v Lett (unreported, 27 March 1995)
- R v Sconamiglio (1991) 56 A Crim R 81
- R v BJW (2000) 112 A Crim R 1
- R v Fisher (1989) 40 A Crim R 442
- R v Evans (unreported, 24 March 1988, NSWCCA)
- R v MJR (2002) 54 NSWLR 368
- R v AB (2005) 156 A Crim R 577
- Veen v The Queen (No 2) (1988) 174 CLR 465
- Hoare v The Queen (1989) 167 CLR 348
- R v Doan (2000) 50 NSWLR 115
- R v Zamagias [2002] NSWCCA 17
- R v Taylor [2000] NSWCCA 442