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District Court 18 January 2013

R v Lord

[2013] NSWDC 16

Sexual offences
CRIMINAL LAW SENTENCE FORMS 1 AGGRAVATED ACT OF INDECENCY MULTIPLE COUNTS BREACH OF TRUST

Citation: R v Lord [2013] NSWDC 16
Court: District Court of New South Wales
Date: 18 January 2013
Judge(s): King SC DCJ

Background

The offender was employed as a casual childcare assistant and later as a coordinator at several YMCA before- and after-school care centres in Sydney's south. Between January 2009 and October 2011, he used his position of authority over children in his care to sexually abuse twelve prepubescent boys. He was arrested twice in October 2011 and has been in custody since 24 October 2011.

The offender pleaded guilty on 23 August 2012 to thirteen counts across multiple victim groups and was committed to the District Court for sentence. A further sixteen offences, spread across ten Forms 1 (a procedural mechanism allowing additional offences to be taken into account on sentence without separate conviction), were also placed before the Court.

The offending included touching children's genitals during excursions and care activities, exploiting positions of trust and authority, and in two cases, progressing to sexual intercourse with children under ten years of age. Victims were as young as eight years old at the time of the offending.

  • What sentences were appropriate for two counts of aggravated sexual intercourse with a child under ten and under authority (s 66A(2), Crimes Act 1900), and eleven counts of aggravated indecent assault of a child under sixteen (s 61M(2))?
  • How should the standard non-parole periods apply across the multiple counts?
  • What discount was appropriate for early guilty pleas, and how should any "Ellis discount" (a discount sometimes applied where an offender cooperates and pleads guilty to matters police may not have otherwise detected) operate?
  • How should the principle of totality apply when accumulating sentences across thirteen counts involving twelve victims?
  • Were there special circumstances justifying a departure from the statutory ratio between the non-parole period and balance of term?

Decision

The Court accepted that the offender was entitled to a 25% discount on each count for the utility of his early guilty pleas, consistent with R v Thomson; R v Houlton. The Court also applied an "Ellis discount" where relevant, acknowledging that some offending came to light partly through the offender's own cooperation.

King SC DCJ imposed individual sentences on each of the thirteen counts, with the most serious being the two counts under s 66A(2) (sexual intercourse with a child under ten and under authority), which carry a maximum of life imprisonment and a standard non-parole period of fifteen years. The Court carefully calibrated the relationship between standard non-parole periods and the individual sentences, guided by principles in R v Hibberd and related authorities.

Applying the totality principle, the Court accumulated the non-parole periods for Counts 10 and 11 (the most serious counts) to arrive at an overall structure that reflected the full criminality of the offending without becoming crushing. The accumulated total sentence was ten years' imprisonment, commencing 24 October 2011, with a non-parole period expiring 23 October 2017.

The Court found special circumstances existed, warranting a greater reduction in the statutory relationship between the non-parole period and the balance of term. This was to allow for a substantial parole supervision period of four years. The Court recommended that upon release, the offender be subject to supervision by the Probation and Parole Service, with particular attention to psychological and psychiatric treatment for sexual offending.

Orders Made

  • Total sentence of ten years' imprisonment, commencing 24 October 2011.
  • Non-parole period expiring 23 October 2017 (first eligible for parole on that date).
  • Balance of term of four years, commencing 24 October 2017 and expiring 23 October 2021.
  • Recommendation that upon release on parole, the offender be subject to supervision by the Probation and Parole Service, with focus on psychological and/or psychiatric counselling and treatment for sexual offending.
  • 25% discount applied to each count for the utility of the early guilty plea.

Key Takeaways

  • The District Court applied the totality principle when accumulating sentences across thirteen counts involving twelve victims, treating the aggregate non-parole period as the minimum time the offender should spend in full-time custody.
  • A 25% discount for the utility of an early guilty plea, as established in R v Thomson; R v Houlton, applied to each count individually rather than to the overall sentence.
  • Where an offender pleads guilty and cooperates with authorities in circumstances where some offending may not otherwise have been detected, an "Ellis discount" may operate alongside the standard guilty plea discount.
  • Special circumstances can justify a departure from the statutory non-parole period to balance of term ratio, particularly where a lengthy and structured parole supervision period is warranted for an offender with rehabilitation needs related to sexual offending.
  • Positions of trust and authority over children, such as employment in childcare, are treated as significant aggravating features under the relevant provisions of the Crimes Act 1900.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 61O(1), 61O(2), 66A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Hibberd [2009] NSWCCA 20
- Dousha v R [2009] NSWCCA 263
- R v Henry [2009] NSWCCA 69
- R v Clinton [2009] NSWCCA 276
- Pearce v R (1998) 194 CLR 610