Citation: R v Endicott [2011] NSWDC 10
Court: District Court of New South Wales
Date: 17 February 2011
Judge: Berman SC DCJ
Background
The offender, a 65-year-old man with a diagnosed terminal illness, was sentenced for offences committed in the early hours of 14 November 2009. Despite being subject to a curfew as a monitored forensic patient, he left his home carrying a bag of items including a large kitchen knife, stockings, gloves, and restraint materials, and entered a residential premises where children were sleeping.
Inside the house, the offender located a six-year-old boy asleep in his bed. With a knife in one hand, he placed his other hand around the child's throat and began to strangle him, with the admitted purpose of enabling him to have sexual intercourse with the child. The boy screamed, fell to the floor, and his cries woke his parents. The offender fled but was tackled and detained by the child's father until police arrived.
The offender had a significant prior history of serious sexual offending against children, including a series of home invasions involving child sexual assaults in the mid-1980s for which he had received a lengthy Supreme Court sentence. Psychiatric assessments identified antisocial personality disorder and paedophilia, with very poor prospects of rehabilitation.
Legal Issues
- What sentences were appropriate for the principal offences of attempting to strangle with intent to commit a serious indictable offence, and aggravated break and enter with commission of a serious indictable offence?
- What weight should be given to the offender's age, terminal illness, and prospects of dying in custody?
- How should the offender's lack of remorse and the limited utilitarian value of his guilty pleas affect the sentence?
- How should the standard non-parole period for the aggravated break and enter offence be applied, given the objective gravity of the conduct?
- Whether special circumstances existed to justify departing from the statutory ratio between non-parole period and total sentence?
Decision
Berman SC DCJ held that the objective gravity of both offences was significantly above the mid-range, a concession properly made by defence counsel. The court noted that the standard non-parole period for the aggravated break and enter offence represented only one quarter of the maximum penalty, making the maximum penalty a more meaningful sentencing reference point. The court did not characterise either offence as being of the worst kind, but acknowledged their very serious nature.
On the question of age and illness, the court was unequivocal: elderly or ill offenders do not have licence to commit crimes, and the prospect of dying in custody does not prevent the imposition of appropriate sentences. The court accepted that the sentences would likely be served almost entirely, or entirely, in custody given their length and the offender's prognosis, but treated this as a direct consequence of the gravity of the offending.
The offender's guilty pleas were not treated as evidence of remorse, since he had been caught in the act by the victim's father. The pleas were nevertheless given a 25 per cent utilitarian discount. The court declined to make a finding of special circumstances in the offender's favour, except to the extent necessary to preserve the statutory ratio across the partially accumulated sentences.
The court also took into account the lasting harm to the young victim and the striking similarity between the 2009 offending and the offender's conduct in the mid-1980s. While acknowledging the legal constraint against imposing a longer sentence purely on account of future dangerousness, the court noted that the risk of reoffending was a permissible consideration in the overall sentencing exercise.
Orders Made
- Aggravated break and enter: Non-parole period of 6 years commencing 14 November 2009; total term of 8 years.
- Attempting to strangle with intent (including Form 1 matters): Non-parole period of 10 years commencing 14 November 2011; total term of 14 years.
- Combined sentence: Total non-parole period of 12 years; parole period of 4 years; total sentence of 16 years imprisonment, with eligibility for parole from 13 November 2021.
Key Takeaways
- Age and serious illness are not mitigating factors that will prevent the imposition of lengthy sentences where the objective gravity of the offending demands them; the District Court stated plainly that neither the elderly nor the ill have licence to commit crimes.
- A 25 per cent discount for guilty pleas on utilitarian grounds remains available even where the offender was apprehended at the scene and has expressed no remorse, provided the pleas carry genuine utilitarian benefit by avoiding a trial.
- Where a standard non-parole period represents only a small fraction of the maximum penalty, the court may treat the maximum penalty as the more useful sentencing benchmark when assessing objective seriousness.
- Prior offending of a strikingly similar character, particularly where it reveals a consistent pattern of dangerous sexual behaviour, can be considered in assessing the risk of reoffending, even though the law does not permit a sentence to be extended solely on the basis of future dangerousness.
- Special circumstances may still be found in partial accumulation scenarios where adjustment is necessary to preserve the statutory ratio between the non-parole period and total sentence across combined sentences, even in the absence of any other individual basis for a finding in the offender's favour.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Sentencing Act (referenced historically in relation to recalculation of the offender's earlier sentence)
Cases:
No cases were cited in the judgment text or metadata.