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District Court 20 June 2008

Regina v REES

[2008] NSWDC 212

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT INDECENT ASSAULT OFFENDER GRANDFATHER OF VICTIM NO REMORSE OR CONTRITION OF OFFENDER

Citation: Regina v REES [2008] NSWDC 212
Court: District Court of New South Wales
Date: 20 June 2008
Judge(s): Finnane QC DCJ

Background

A jury convicted the offender, a man aged over 65, of one count of sexual intercourse without consent following a trial in December 2007. The victim, referred to throughout the proceedings as Miss S., was a young woman who had been in a long-term relationship with the offender's son and was the mother of the offender's grandchild. At the relevant time, she was visiting the offender's home.

The offence occurred on 30 September 2006. The offender entered a bedroom, removed his clothing, and compelled the victim to submit to penile/vaginal intercourse. The victim made prompt complaints to family members and a social worker, though she did not immediately go to the police, and by the time she did, forensic evidence could not be obtained.

The offender denied guilt throughout the trial and continued to do so at the time of sentencing. He had no prior criminal history, was described as a hardworking and valued employee, suffered from asbestosis and chronic arthritis, and had a dependent spouse. The jury acquitted him of a separate charge of indecent assault.

  • Whether the offence fell within the midrange of objective seriousness for the purposes of the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • What weight to give the offender's significant subjective factors, including age, health, good character, and low likelihood of reoffending
  • Whether a non-custodial sentence, or a suspended term combined with a substantial fine, was appropriate in the circumstances
  • Whether special circumstances existed justifying a departure from the standard non-parole to total sentence ratio

Decision

The sentencing judge assessed the offence as falling within the midrange of objective seriousness. The judge characterised penile/vaginal rape as among the most serious crimes that can be committed against a woman, noting the offender held a position of dominance over the victim and abused it. The standard non-parole period for a midrange offence of this type is seven years.

The court gave careful consideration to the offender's age, poor health, and absence of prior offending. The judge noted the additional hardship that imprisonment would impose, particularly because the offender would likely need to seek protection within the prison system. Drawing on personal visits to several NSW correctional facilities, the judge observed that protection prisoners face substantially restricted conditions, including limited access to sporting facilities and library services.

Despite those factors, the court rejected submissions that a suspended sentence or a fine was appropriate. The offender's continued denial of guilt, absence of remorse or contrition, and refusal to engage in sex offender counselling were determinative. The judge reasoned that a non-custodial outcome would fail to give adequate effect to general deterrence and retribution for a midrange offence of this gravity.

The judge found special circumstances, justifying a non-parole period of four years against a total sentence of seven years. This was reduced from the five-year non-parole period imposed in a comparable prior case, reflecting the offender's more advanced age and the shorter duration of the assault.

Orders Made

  • Non-parole period of four years, commencing 20 June 2008 and expiring 19 June 2012
  • Balance of sentence commencing 20 June 2012 and expiring 19 June 2015
  • Recommendation that consideration be given to releasing the offender on parole on 19 June 2012
  • Recommendation that the offender be classified as soon as possible and placed in a minimum security institution at the earliest opportunity

Key Takeaways

  • The District Court confirmed that penile/vaginal rape falls at a high level of objective seriousness, and that a single-incident offence by a person in a position of domestic dominance over the victim may properly be assessed as midrange for standard non-parole period purposes.
  • Significant subjective factors, including advanced age, serious health conditions, good character, and low risk of reoffending, can reduce a sentence below the standard non-parole period, but they do not, of themselves, justify a non-custodial outcome for a midrange rape offence.
  • Where an offender maintains innocence after conviction and shows no remorse or willingness to undergo rehabilitation, those matters weigh against the imposition of a suspended sentence or financial penalty in lieu of full-time custody.
  • The court's observation about prison protection conditions, based on the judge's own visits to correctional facilities, informed the sentencing discretion but did not override the requirements of general deterrence and retribution.
  • A finding of special circumstances permitted a non-parole period of four years against a total term of seven years, reflecting the balance between the objective seriousness of the offence and the weight of the offender's personal circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- The judgment references, without formal citation, the earlier sentencing decision of Finnane QC DCJ in relation to an offender named Edmund Turnell (sentenced 16 December 2005 for a similar offence), used as a comparative yardstick. No other cases are formally cited in the text provided.