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District Court 15 April 2013

R v WC

[2013] NSWDC 197

Sexual offences
CRIME SENTENCING AGGRAVATED SEXUAL ASSAULT RELEVANCE OF STATISTICS OFFENDER'S PHYSICAL AND MENTAL HEALTH PROTECTIVE CUSTODY

Citation: R v WC [2013] NSWDC 197
Court: District Court of New South Wales
Date: 15 April 2013
Judge: Letherbarrow SC DCJ

Background

The offender, a 39-year-old man, was convicted by jury of three counts of aggravated indecent assault against his 12-year-old stepdaughter, contrary to s 61M(2) of the Crimes Act 1900. The offences occurred over two occasions at the family home in August 2011, while the offender was living with the complainant, her mother, and her younger sister. The maximum penalty for each offence was ten years imprisonment, with a standard non-parole period of eight years.

The first and second counts arose from events on 18 August 2011. The third count, which was the first in time, occurred on a weekend earlier that month. The conduct ranged from grabbing the complainant through her clothing to incidents involving the offender placing his penis against the complainant's body and ejaculating. Each offence was aggravated by the complainant's age.

At the sentence hearing, the court received a victim impact statement, the offender's criminal and custodial histories, a psychological report, a cardiologist's report, health records, and statistical data from the Judicial Commission of NSW. The offender gave oral evidence and had no prior criminal history.

  • How to assess the objective seriousness of each offence following Muldrock v The Queen [2011] 244 CLR 120, which reformed the approach to standard non-parole periods
  • What weight, if any, to give sentencing statistics provided by the Judicial Commission
  • How to treat the offender's physical health (cardiac condition) and mental health in sentencing
  • How to treat the offender's good character in the context of child sexual offences committed within the family
  • Whether special circumstances existed to justify a longer parole period than the statutory default
  • How to approach accumulation of sentences across three counts, having regard to totality principles

Decision

Objective seriousness and the standard non-parole period: Following Muldrock, the court assessed the objective seriousness of each offence across the full range, rather than treating the standard non-parole period as a fixed benchmark. The court determined that the counts involving physical contact with the complainant's body and ejaculation were of greater objective seriousness than the first count, which involved a brief grabbing of the complainant through her clothing.

Factual findings at sentencing: Where the parties disputed the facts underlying counts 1 and 2, the court applied the criminal standard of proof. The court accepted the complainant's account as the more reliable evidence, finding her to be an impressive witness. The court was not satisfied beyond reasonable doubt as to certain elements described by the younger sister, whose evidence it regarded as less reliable.

Good character, health, and protective custody: The court acknowledged the offender's lack of prior criminal history but treated his good character as carrying significantly reduced weight, given that the offences were committed against a child within his own family and involved a gross breach of trust. His cardiac condition and psychological profile were noted as relevant subjective factors. The court also recognised that the offender was held in protective custody, which made his time in custody more onerous than it would be for the general prison population.

Totality and special circumstances: The court imposed partially accumulated sentences across the three counts to reflect the totality of the criminality involved, while giving some weight to the defence submission that counts 1 and 2 occurred on the same day. Special circumstances were found, justifying an extended parole period, on the basis of the partial accumulation, the benefit of extended supervision for rehabilitation, and the fact that this was the offender's first period of custody.

Orders Made

  • Count 1: Total sentence of 9 months imprisonment commencing 2 November 2012, with a non-parole period of 6 months expiring 1 May 2013
  • Count 2: Total sentence of 5 years imprisonment commencing 2 December 2012 and expiring 1 December 2017, with a non-parole period of 3 years expiring 1 December 2015
  • Count 3: Total sentence of 5 years imprisonment commencing 2 May 2013 and expiring 1 May 2018, with a non-parole period of 3 years expiring 1 May 2016
  • Total effective sentence: 5 years and 6 months, with a non-parole period of 3 years and 6 months
  • First sentence backdated to 2 November 2012 to account for presentence custody of 164 days
  • Direction that copies of the psychological and cardiologist reports be included with the committal warrant

Key Takeaways

  • Sentencing statistics from the Judicial Commission are of limited utility. Following R v AEM and others (2002) NSWCCA 58, the District Court confirmed they are a blunt tool and cannot substitute for a careful analysis of the individual case.
  • After Muldrock v The Queen [2011] 244 CLR 120, the standard non-parole period functions as a reference point rather than a starting point, and courts assess objective seriousness across the full sentencing range without anchoring the analysis to that figure.
  • Good character carries significantly diminished weight in sentencing for child sexual offences committed within the family, where the relationship of trust is itself an integral part of the offending.
  • Protective custody conditions are a legitimate factor in assessing the severity of a custodial sentence, as they make imprisonment more burdensome than the standard prison experience.
  • Special circumstances justifying a departure from the statutory non-parole period ratio can arise from a combination of factors, including partial accumulation of sentences, the rehabilitative value of extended supervision, and an offender serving their first period of imprisonment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Crimes Amendment (Sexual Offences) Act 2008 (NSW)

Cases
- Muldrock v The Queen [2011] 244 CLR 120
- Pearce v The Queen (1998) 194 CLR 610
- Markarian v The Queen (2005) 228 CLR 357
- R v AEM and others (2002) NSWCCA 58
- RWNB v R (2010) 202 A Crim R 209
- Stewart v R [2012] NSWCCA 183
- Bondwick v R [2010] NSWCCA 177
- R v Rule (unreported, NSWCCA, 25 November 1995)
- R v PVM (2008) 187 A Crim R 29