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Local Court 23 November 2007

DPP v Weir

[2007] NSWLC 36

Sexual offences
INDECENT ASSAULT GROSS INDECENY SOLICIT TO AN ACT OF GROSS INDECENCY

Citation: DPP v Weir [2007] NSWLC 36
Court: Local Court of New South Wales
Date: 23 November 2007
Judge(s): Chief Magistrate G L Henson

Background

The offender pleaded guilty to six charges involving two separate child victims spanning a period of approximately 16 years. Three charges arose from offences committed in 1989 under provisions of the Crimes Act 1900 that have since been repealed. The remaining three charges arose from offences committed between 2001 and 2005.

The 1989 offences involved an 11-year-old boy, the younger brother of the offender's former wife, whom the offender was babysitting at the time. The conduct included groping, touching the child's genitals through clothing, and soliciting the child to expose himself while requesting sexual contact.

The 2001 to 2005 offences involved a girl who was the offender's goddaughter, aged between five and nine years across the three incidents. The conduct included digital touching of the victim's vagina, an open-mouth kiss, and sucking her nipple during a torchlight museum tour. The offender had initially denied the allegations when interviewed by police in December 2006, but subsequently entered guilty pleas at an early stage of proceedings.

  • What discount, if any, should be applied to reflect the utilitarian value of the early guilty pleas under s 22 of the Crimes (Sentencing Procedure) Act 1999?
  • What aggravating and mitigating factors applied under s 21A of the same Act?
  • Whether the sentencing purposes under s 3A, particularly general deterrence, justified a term of full-time imprisonment rather than a suspended sentence.
  • How individual sentences should be structured given the Local Court's jurisdictional constraints, including the five-year cumulative cap under s 58 of the Crimes (Sentencing Procedure) Act 1999.

Decision

Chief Magistrate Henson applied a 25% discount for the utilitarian value of the guilty pleas, placing the pleas at the upper end of the 10 to 25% range established in R v Thomson and Houlton. The primary justification was the timing of the pleas and the consequential removal of any need for either victim to give evidence and be cross-examined. The Chief Magistrate emphasised that 25% represents the upper limit of a range, not an automatic minimum.

On aggravating and mitigating factors, the court identified the youth and particular vulnerability of both victims, the offender's position of trust as babysitter and godfather, and the existence of multiple victims across a prolonged period as significant aggravating features. A victim impact statement was tendered in relation to the second series of offences.

The court considered, but ultimately rejected, a suspended sentence. The Chief Magistrate acknowledged the offender's changed personal circumstances and participation in therapeutic programs. However, consistent with R v Taylor [2000] NSWCCA 442, the court found that where general deterrence is of paramount importance, a suspended sentence is not appropriate. The nature and circumstances of child sexual offending placed general deterrence at the forefront of the sentencing exercise.

The sentences imposed for the 2001 to 2005 offences were made cumulative upon those for the 1989 offences, producing an effective period of full-time imprisonment of 18 months, within the Local Court's jurisdictional ceiling.

Orders Made

  • Three concurrent sentences of six months imprisonment each for the 1989 offences, commencing forthwith.
  • Three concurrent sentences for the 2001 to 2005 offences, each comprising a non-parole period of 12 months and a total term of 16 months, commencing 22 May 2008 and cumulative upon the 1989 sentences.
  • Effective total period of full-time imprisonment: 18 months.
  • Eligibility for release on parole: 21 May 2009, subject to supervision by the Probation and Parole Service.

Key Takeaways

  • The guilty plea discount under R v Thomson and Houlton operates as a range of 10 to 25%, with the timing of the plea as the primary determinant. The Local Court confirmed that 25% is not an automatic entitlement but the ceiling of that range, awarded here because the pleas were entered early and spared both child victims from giving evidence.

  • Where an offender holds a position of trust in relation to child victims, such as a babysitter or godparent, this constitutes a significant aggravating factor in sentencing for child sexual offences.

  • General deterrence was identified as the paramount sentencing purpose in this case, displacing rehabilitation as the dominant consideration despite the offender's therapeutic engagement and changed circumstances.

  • Consistent with R v Taylor, the sentencing court declined to suspend sentences where general deterrence carries particular weight, treating the offending as too serious to be adequately addressed by a non-custodial outcome.

  • The Local Court's sentencing discretion was constrained by s 58 of the Crimes (Sentencing Procedure) Act 1999, which caps cumulative sentences at five years from the commencement of the first term when a Local Court imposes sentences on a cumulative basis.

Legislation and Cases Referenced

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

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