AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Local Court 14 December 2010

DPP -v- Tulk

[2010] NSWLC 28

Sexual offences
SENTENCE NEED FOR GENERAL DETERRENCE TYPES OF SEXUAL ACTIVITY FULL TIME CUSTODY APPROPRIATE

Citation: DPP v Tulk [2010] NSWLC 28
Court: Local Court of New South Wales (Albury)
Date: 13–14 December 2010
Judge(s): Magistrate Lerve

Background

The offender, a man born in 1961, met a 15-year-old boy through the internet chat platform "Tagged." During their initial contact, the complainant indicated he was in Year 10 at school and the offender disclosed he was 40 years old. The two subsequently exchanged mobile numbers and arranged to meet in person on two occasions between February and April 2010.

At those meetings, which took place at the offender's home in Albury, a range of sexual activity occurred. This included penile-anal intercourse, oral sex performed by and on the complainant, and masturbation. The offender was arrested at Albury Police Station in July 2010 and declined to be interviewed.

The offender pleaded guilty on 11 October 2010 to three counts of sexual intercourse with a person aged between 14 and 16 years under s 66C(3) of the Crimes Act 1900. Three additional matters (two further counts of the same offence and one count of inciting a person under 16 to an act of indecency) were taken into account on a Form 1 schedule when sentencing on the first count.

  • Whether a full-time custodial sentence was warranted, having regard to the nature and number of the offences and the need for general deterrence
  • Where the offending fell on the spectrum of objective seriousness for offences of this type
  • The appropriate discount for an early guilty plea
  • Whether the sentences for the three principal counts should be served concurrently or cumulatively
  • Whether special circumstances existed to justify varying the standard non-parole period ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999

Decision

Magistrate Lerve held that full-time custody was appropriate and that no non-custodial or suspended sentence option could adequately reflect the seriousness of the offending. The need for general deterrence weighed heavily, particularly given that the offender used an internet platform to meet the complainant, the complainant was 15 years old, and the age gap between the parties was 34 years.

On objective seriousness, the Magistrate assessed the offending as falling below the midpoint on the spectrum for offences of this kind that routinely come before the court. There was no coercion, the sexual activity was confined to two meetings over a short period, and the Form 1 matters at the less serious end of the spectrum were of limited additional weight. The Magistrate applied the principle from Ibbs v The Queen and R v PGM that some forms of sexual activity may be regarded as more serious than others, though context always modifies that assessment.

The offender was entitled to the full 25% discount for the utilitarian value of his early guilty plea, consistent with R v Thomson; R v Houlton and R v Borkowski. The Magistrate identified a starting point of approximately 18 months' imprisonment, from which the discount was applied and the result rounded down in the offender's favour.

The three principal sentences were imposed wholly concurrently, on the basis that the sentence for the first count could comprehend the criminality of the other two. Special circumstances were found to exist under s 44, given the offender's age, the fact that this was his first time in custody and before a court, and the need for supervision and treatment on release to reduce the risk of reoffending.

Orders Made

  • The offender was convicted on each of the three counts to which he pleaded guilty.
  • In respect of Sequence 1 (taking into account the three Form 1 matters): a non-parole period of 6 months, commencing 14 December 2010 and expiring 13 June 2011, followed by a balance of term of 7 months, commencing 14 June 2011 and expiring 12 January 2012.
  • Parole to be supervised.
  • All sentences imposed concurrently.

Key Takeaways

  • The use of an internet chat platform to establish contact with a minor was treated as a relevant aggravating feature in assessing the need for general deterrence, even where the statutory offence did not require proof of grooming as an element.
  • A 34-year age gap between an adult offender and a 15-year-old complainant was a significant sentencing consideration, even in the absence of coercion.
  • Under s 66C(3) of the Crimes Act 1900, following CTM v The Queen, a guilty plea carries the implicit concession that the offender was at least reckless as to whether the complainant was under 16 years of age.
  • Previous good character carries reduced mitigating weight in child sexual offence sentencing, though it remains a relevant factor.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 may be established where a first-time offender requires structured supervision and treatment on release to address the risk of reoffending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 44

Cases
- CTM v The Queen (2008) HCA 25
- Ibbs v The Queen (1987) 163 CLR 447
- Pearce v The Queen (1998) 194 CLR 610
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Doan (2000) 50 NSWLR 115
- R v Zamagias [2002] NSWCCA 17
- Attorney General's Reference No. 1 of 2002 (Guideline Judgment on Form 1) [2002] NSWCCA 518
- Attorney General's Reference No. 2 of 2002 (Guideline Judgment on Assault Police) [2002] NSWCCA 515C
- R v Ryan (2003) 141 A Crim R 403
- R v Cahyadi [2007] NSWCCA 1
- R v PGM [2008] NSWCCA 172
- Han v R [2009] NSWCCA 300
- P v R [2009] NSWCCA 291
- R v Borkowski [2009] NSWCCA 102
- Kenny v R [2010] NSWCCA 6