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District Court 10 December 2009

R v Anthony TALLY

[2009] NSWDC 367

Sexual offencesTheft & property
CRIMINAL LAW SENTENCE FORM 1 AGGRAVATED SEXUAL ASSAULT BREAK ENTER AND STEAL

Citation: R v Anthony TALLY [2009] NSWDC 367
Court: District Court of New South Wales
Date: 10 December 2009
Judge(s): Berman SC DCJ

Background

The offender was sentenced for a number of offences spanning a decade. The most serious was an aggravated sexual assault committed in August 1997, in which he approached a 21-year-old woman walking in Strathfield, threatened her with a screwdriver, and forced her to have sexual intercourse with him. The prosecution of that offence was delayed by over twelve years because the offender was only identified through DNA matching at a comparatively recent time.

The remaining offences were a series of break, enter and steal matters committed predominantly in late 2007. The offender's method involved using a rock to break through a window or door, entering residential premises, and taking valuables, which he sold to fund a drug addiction. His DNA, left at each scene, led to the identification and prosecution of nearly all the 2007 offences.

The offender pleaded guilty to all charges. Several of the break, enter and steal matters were placed on a Form 1, meaning the court would take them into account when sentencing on the principal offence rather than imposing separate sentences for each.

  • What sentences were appropriate for the aggravated sexual assault and the break, enter and steal offences, having regard to their objective seriousness?
  • How should the twelve-year delay between the 1997 offence and sentencing affect the penalty?
  • Whether the absence of any prior or subsequent sexual offending was a relevant mitigating factor.
  • Whether a finding of special circumstances was warranted to extend the period of parole supervision.
  • What discount applied for the offender's early guilty pleas across all matters?

Decision

The court identified the 1997 aggravated sexual assault as the principal and most serious offence. Despite the significant delay since commission, the court held that the offence remained very serious, warranting a sentence with a substantial component of general deterrence. The court noted that the victim impact statement confirmed the long-lasting and likely permanent consequences of offending of this type.

The twelve-year delay produced several relevant considerations. On one hand, the offender could not be sentenced as though he were being dealt with in 1997. On the other hand, the court observed that had the offence been discovered sooner, the offender would have been dealt with while already in custody for other matters. The absence of any sexual offences anywhere on the offender's criminal history, before or after 1997, led the court to treat the aggravated sexual assault as a likely isolated incident of that nature, though no such finding could be made about the property offences.

An early guilty plea discount of approximately 25 per cent was applied across all matters, consistent with the Crown's concession. The court applied the principle from R v Pearce that each offence must be sentenced separately, accounting for its own objective gravity. A finding of special circumstances was made, extending the period on parole beyond the standard proportion, on the basis that the offender would benefit from extended supervision by the Probation and Parole Service upon release, in the interests of the community as well as the offender.

The break, enter and steal offences, while described as unremarkable in type, were not treated as minor. The court noted that harm from such offences extends beyond individual victims to the broader community through increased security costs and insurance premiums.

Orders Made

  • Break, enter and steal (matters B and C): fixed term of two years imprisonment, commencing 18 January 2008.
  • Break, enter and steal (matters D, E and F): fixed term of two years imprisonment, commencing 18 January 2009.
  • Aggravated sexual assault: non-parole period of four years commencing 18 January 2010, with a head sentence of seven years.
  • Overall sentence: nine years imprisonment with a six-year non-parole period.

Key Takeaways

  • A significant delay between the commission of an offence and sentencing does not eliminate the need for general deterrence, particularly for serious sexual offences, though it remains a relevant consideration in the sentencing exercise.
  • DNA evidence connecting an offender to an old offence can justify prosecution many years after the fact, and the sentencing court must grapple with the consequences of that delay for both the offender and the victim.
  • The absence of any prior or subsequent offending of the same type may support a finding that a particular offence was an isolated instance, which the court can treat as a mitigating factor.
  • Special circumstances justifying an extended parole period need not reflect leniency toward the offender; the District Court here framed the finding as serving the community's interest in supported reintegration.
  • Where multiple offences are sentenced together, the principle in R v Pearce requires each to be assessed on its own objective gravity, even where some matters are dealt with on a Form 1.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)

Cases:
- R v Pearce [1998] HCA 57