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District Court 24 March 2011

R v Johnson

[2011] NSWDC 32

Sexual offences
CRIMINAL LAW SENTENCE FEMALE SEXUAL OFFENDER UNDER AUTHORITY MULTIPLE MALE VICTIMS SS66C AND 61O

Citation: R v Johnson [2011] NSWDC 32
Court: District Court of New South Wales
Date: 24 March 2011
Judge: A.F. Garling DCJ

Background

The offender was a staff member at a boarding school in Moss Vale, NSW. In that role she held authority over a number of male boarding students aged between ten and sixteen years. Between January and July 2009, she committed a series of sexual offences against six of those students.

Following a judge-alone trial, the offender was convicted of 21 counts, comprising aggravated sexual intercourse under ss 66C(2) and 66C(5)(d) of the Crimes Act 1900 and aggravated acts of indecency under s 61O. The aggravating circumstance in every count was that each victim was under her authority. The offender had raised a defence of mental illness at trial, but this was rejected.

The sentence proceedings addressed how the court should approach the overall sentence structure across 21 counts, the relevance (or otherwise) of the offender's gender, and the weight to be given to her mental condition as a mitigating factor.

  • Whether the offender's mental condition, though insufficient to establish a defence of mental illness, warranted mitigation of sentence
  • Whether the offender's gender should be taken into account in sentencing
  • How to structure consecutive and concurrent sentences across 21 counts to reflect totality and maintain a proper non-parole period to head sentence ratio
  • Application of the Crimes (Sentencing Procedure) Act 1999 to a large multi-count indictment with no applicable standard non-parole periods

Decision

Garling DCJ found that the offender's gender was not a relevant sentencing consideration. The court stated explicitly that it sentenced the offender in the same way it would have sentenced a male offender committing equivalent offences.

The court accepted that the offender's mental condition, while not meeting the threshold for the defence of mental illness, was nonetheless a relevant subjective factor to be weighed in mitigation. This was balanced against the serious objective gravity of the offending, which involved multiple child victims, a position of authority, and conduct of an intrusive and persistent nature occurring over several months.

Garling DCJ grouped the 21 counts into several tranches of concurrent sentences, to be served consecutively across one another. The court noted that as the number of offences increases in a cumulative sentence structure, the non-parole period will appear proportionally more favourable to an offender at the tail end of the sentence, in order to maintain a proper ratio between the non-parole period and the head sentence under the Crimes (Sentencing Procedure) Act 1999.

Special circumstances were found, justifying a departure from the standard one-third ratio between the non-parole period and the balance of the sentence across the overall term.

Orders Made

  • Charge 1: Non-parole period of 1 year 2 months, total term of 2 years, from 21 March 2011
  • Charges 2, 4, 5, 6, 7 and 8 (concurrent): Non-parole period of 3 years 8 months, total term of 6 years, from 21 March 2011
  • Charge 3: Non-parole period of 1 year 2 months, total term of 2 years, from 21 March 2011
  • Charges 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 (concurrent): Non-parole period of 3 years 8 months, total term of 6 years, from 21 March 2012
  • Charges 19 and 20 (concurrent): Non-parole period of 2 years, total term of 4 years, from 21 March 2014
  • Charge 21: Non-parole period of 1 year, total term of 4 years, from 21 March 2015
  • Earliest eligibility for parole: 20 March 2016
  • The offender was noted as subject to the Child Protection (Offenders Registration) Act 2000

Key Takeaways

  • The District Court held that a female offender convicted of sexual offences against child victims must be sentenced on the same basis as a male offender; gender is not a relevant sentencing factor.
  • A mental condition that falls short of establishing the defence of mental illness may still operate as a mitigating subjective factor at sentencing, provided it is weighed against the objective seriousness of the offending.
  • Where an indictment contains a large number of counts and sentences are structured cumulatively, the non-parole period toward the end of the overall sentence will naturally appear more favourable to the offender in order to preserve a lawful ratio under the Crimes (Sentencing Procedure) Act 1999.
  • Special circumstances warranting a departure from the standard non-parole period ratio can be found in multi-count matters, particularly where the overall sentence structure would otherwise produce disproportionate results.
  • A position of authority over child victims was treated as an aggravating circumstance embedded in the offences themselves, rather than a factor to be separately weighed, because it formed part of the statutory definition of each charge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 66C(2), 66C(5)(d), 61O(1), 61O(3)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases
- R v Heatley [2006] NSWSC 1199
- Veen v R (No 2) (1988) 164 CLR 465
- R v Evans (unreported, NSWCCA, 24 March 1988)
- R v Rapley [1999] NSWCCA 302
- R v Leigh [1996] QCA 058
- R v Howell [2007] VSCA 119