Citation: R v David John Stevens [2014] NSWDC 167
Court: District Court of New South Wales
Date: 1 August 2014
Judge(s): Yehia SC DCJ
Background
The offender was approximately 19 years old when, on a single night between September and December 1978, he participated in a series of serious sexual offences against a 17-year-old victim at a house-warming party in south-west Sydney. The offender and the victim lived on the same street in Campbelltown. The offender, along with several other men, was travelling in a panel van driven by a friend.
The offender forcibly placed the victim into the back of the van against her will, then raped her twice. He subsequently stood outside the van, remaining ready and willing to assist the other men as they each committed sexual offences against the victim in turn. That conduct formed the basis of aiding and abetting charges in relation to the rapes committed by two other men and an attempted rape by a third. The offender also committed a separate indecent assault on the victim.
The offender pleaded not guilty to all nine counts on the indictment and maintained that the events never occurred. A jury found him guilty on counts 1 to 8 after a trial commencing in May 2014, and not guilty on count 9, which related to a separate occasion in 1980. The matter proceeded to sentencing on the eight proven counts.
Legal Issues
- What sentences were appropriate for each of the eight counts, having regard to the gravity of the offences and the relevant maximum penalties under the legislation in force at the time of offending?
- How should the sentences be structured, including whether they should be served concurrently, cumulatively, or partially accumulated?
- Whether an aggregate sentence was appropriate, and if so, what non-parole period should apply having regard to special circumstances?
- What was the proper characterisation of the offender's role in the offences where he did not personally commit the principal act, particularly in relation to aiding and abetting rape and attempted rape?
Decision
Her Honour made detailed factual findings consistent with the jury's verdicts. The offender was found to have personally committed the acts constituting counts 1, 2, 3, and 8: forcible detention, two counts of rape, and indecent assault. For counts 4 and 5, the offender was found to have aided and abetted the rapes committed by Mark Johnson and Edward Lewockie respectively by standing outside the van, ready and willing to prevent the victim from escaping, even though he performed no specific physical act of assistance during those offences. The same reasoning applied to counts 6 and 7, involving indecent assault and attempted rape by two other men.
Her Honour set out indicative sentences for each count before imposing an aggregate term. The indicative sentences ranged from nine months for the aided and abetted indecent assault (count 6) to seven years for each of the two counts on which the offender was the principal rapist (counts 2 and 3). Her Honour determined that a purely concurrent sentence would not adequately reflect the criminality involved, as each offence involved a distinct and serious act with a different principal offender. Accordingly, the sentences were partially accumulated rather than served wholly concurrently or consecutively.
Her Honour found that special circumstances existed justifying a variation of the standard non-parole period ratio, and imposed an aggregate sentence of ten years with a non-parole period of four years and six months.
Orders Made
- The offender was convicted on counts 1 to 8.
- An aggregate sentence of ten years imprisonment was imposed, commencing 1 August 2014 and expiring 31 July 2024.
- A non-parole period of four years and six months was set, commencing 1 August 2014 and expiring 31 January 2019.
- One day of pre-sentence custody was taken into account.
- The offender would be eligible for release to parole on 31 January 2019.
- Remarks on sentence and associated statistical tables were directed to be placed on the court file.
- Exhibits were ordered to be returned.
Key Takeaways
- Aiding and abetting rape does not require a physical act of assistance during the principal offence: the District Court found that standing outside a vehicle, ready and willing to prevent the victim from escaping, was sufficient to ground liability as an aider and abettor.
- Where multiple serious sexual offences are committed against the same victim in a single episode by several perpetrators, a wholly concurrent sentence will not adequately reflect the total criminality involved, particularly where each offence involves a distinct act with a different principal offender.
- An aggregate sentencing approach under the Crimes (Sentencing Procedure) Act 1999 requires the court to set out indicative sentences for each count before arriving at the overall term, preserving transparency in the reasoning process.
- Special circumstances can justify a departure from the standard non-parole period ratio, resulting in a proportionally longer parole period to assist with rehabilitation and community reintegration.
- Historical sexual offences are sentenced by reference to the maximum penalties that applied under the law in force at the time of offending, which in this case included maximum penalties of life imprisonment for rape under the then s 63 of the Crimes Act 1900.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), including ss 63 (rape), 65 (attempted rape), 76 (indecent assault), 89 (forcible detention)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Parole of Prisoners Act 1966 (NSW)
Cases:
- AJB v Regina [2007] NSWCCA 51
- Catalan (1975) NSWCCA 226
- Flaherty & Ors (1968) 3 NSWLR (also reported as 89 NSW 141)
- Hili v R (2010) 520 CLR 537
- Magnuson v R [2013] NSWCCA 50
- R v MJR [2010] NSWSC 653
- R v Todd [1982] 2 NSWLR 517