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Local Court 22 December 2009

DPP V Sheldon

[2009] NSWLC 17

Sexual offences
CRIMINAL LAW PARTICULAR OFFENCES SEXUAL OFFENCES SEXUAL INTERCOURSE

Citation: DPP v Sheldon [2009] NSWLC 17
Court: Local Court of New South Wales (Downing Centre)
Date: 22 December 2009
Judge(s): Chief Magistrate G L Henson

Background

The offender, a 32-year-old man, was charged with two counts of sexual intercourse with a person aged 14 years or over but under 16 years, contrary to section 66C(3) of the Crimes Act 1900. The maximum penalty for that offence is 10 years imprisonment. The DPP elected to prosecute in the Local Court rather than by indictment in the District Court, which capped the available penalty at 2 years imprisonment per count.

The offences occurred during the late evening of 25 October 2008 and the early hours of 26 October 2008. The victim was a 15-year-old girl who had been left in the offender's care while her father attended a nearby concert. The offender had encouraged the victim to consume additional alcohol beyond what her father had permitted, kissed her after she had declined his initial advance, and then engaged in oral sex (reflected in a Form 1) and penile intercourse with her. The offender made statements during the encounter indicating he was aware of the victim's age.

Following a case conference under the Criminal Case Conferencing Trial Act 2008, the offender pleaded guilty on 27 August 2009 to one count of sexual intercourse. The second count was placed on a Form 1 to be taken into account on sentencing.

  • What weight should be given to the DPP's election to prosecute in the Local Court when assessing the objective seriousness of the offence?
  • What discount applied to the guilty plea, given it arose through the Criminal Case Conferencing Trial process rather than the ordinary common law or statutory pathway?
  • What role do general deterrence, rehabilitation, and special circumstances play in fixing the sentence, including the non-parole period?
  • Whether full-time custody was required, or whether periodic detention or a suspended sentence could be justified.

Decision

Chief Magistrate Henson confirmed that the DPP's choice to prosecute in the Local Court, while implying the prosecution did not regard the matter as warranting a penalty beyond the 2-year jurisdictional limit, does not alter the sentencing principles. Following R v Doan (2000) 50 NSWLR 115, the court was still required to assess the objective seriousness of the offence by reference to the 10-year maximum, not the jurisdictional cap.

On the plea discount, the court noted that the guilty plea was entered before any committal proceeding, which would ordinarily attract a significant utilitarian discount in the range of 10 to 25 percent under R v Thomson and Houlton (2000) 49 NSWLR 383. However, the plea arose through the Criminal Case Conferencing Trial process, which carried its own statutory benefit that governed the discount rather than the common law principles alone.

On sentence, the Chief Magistrate found that general deterrence was the paramount consideration for offences of this nature. Neither periodic detention nor a suspended sentence was regarded as appropriate, as both would undermine that paramount principle, consistent with observations in R v Taylor [2000] NSWCCA 442. The court acknowledged some rehabilitative progress by the offender, including engagement with alcohol treatment and psychotherapy, and found that special circumstances existed under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify a departure from the standard ratio between the head sentence and non-parole period. This was to allow for a longer period of post-release supervision.

Orders Made

  • The offender was sentenced to a term of imprisonment of 1 year and 6 months, commencing forthwith.
  • Non-parole period fixed at 10 months of full-time custody; the offender was eligible for release on 21 October 2010.
  • Parole period of 8 months, subject to supervision and direction of the Probation and Parole Service, including:
  • Referral to the Department of Community Services Forensic Psychology unit for treatment in their low-risk group.
  • Supervision by the Probation and Parole Service monitoring stability, abstinence, and continued engagement with treatment and Alcoholics Anonymous.
  • Continued engagement in psychotherapy with his psychologist, and attendance at group psychotherapy if assessed as suitable.

Key Takeaways

  • A Local Court sentencing for an offence with a statutory maximum of 10 years must still assess objective seriousness against that maximum, even where the DPP's election to prosecute in the Local Court caps the available penalty at 2 years per count.
  • The DPP's prosecutorial decision to remain in the Local Court expresses an opinion that the matter does not warrant a penalty beyond the jurisdictional limit, but that decision falls entirely outside the court's role and does not modify the applicable sentencing framework.
  • Where a guilty plea arises through the Criminal Case Conferencing Trial process, the statutory benefit attaching to that process governs the discount, rather than (or in addition to) the ordinary common law principles under Thomson and Houlton.
  • General deterrence was treated as the paramount sentencing consideration for offences of sexual intercourse with a 15-year-old, with the court finding that both periodic detention and suspended sentences would be inconsistent with that principle.
  • Special circumstances warranting a departure from the standard head sentence to non-parole ratio can exist where an extended parole period is needed to support ongoing rehabilitation and supervision, even in cases where full-time custody is unavoidable.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(3)
- Criminal Procedure Act 1986 (NSW), ss 91, 93, 260, Schedule 1, Table 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 32, 44(2)
- Criminal Case Conferencing Trial Act 2008 (NSW)

Cases
- R v Bloomfield (1998) 44 NSWLR 734
- R v Borokowski [2009] NSWCCA
- R v Doan (2000) 50 NSWLR 115
- R v Engert (1996) 84 A Crim R 67
- R v Israel [2002] NSWCCA 255
- R v Kennedy [2000] NSWCCA 527
- R v Sconamiglio (1991) 56 A Crim R 81
- R v Taylor [2000] NSWCCA 442
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR
- R v Wright (1997) 93 A Crim R 48
- R v Zappala [1991] NSWCCA
- Tsakonas v R [2009] NSWCCA 258