Citation: R v William James Clarke [2014] NSWDC 182
Court: District Court of New South Wales
Date: 29 October 2014
Judge: Mahony SC DCJ
Background
The offender, a 29-year-old man, was charged with one count of aggravated sexual intercourse without consent with a person under 16 years of age, contrary to section 61J(1) of the Crimes Act 1900. The offence occurred on 12 March 2014 at his home in Kempsey, where the 15-year-old victim, a distant relation, had come to use his phone. The victim waited at the premises while the phone charged and was given multiple alcoholic drinks during the evening.
The victim fell asleep on the offender's bed fully clothed. She woke to find her clothing displaced and her vagina sore. DNA evidence subsequently confirmed sexual contact. The offender's response when confronted by the victim was dismissive. He left the area before being arrested on 28 March 2014.
The offender entered a guilty plea on 22 July 2014, accepted by the court as the earliest practicable opportunity. He had been in custody from the date of his arrest.
Legal Issues
- What weight should be given to the offender's guilty plea and the timing of that plea?
- How should the offender's extensive and troubled criminal history bear on sentence?
- To what extent did the offender's severely deprived upbringing reduce his moral culpability, consistent with the principles in R v Fernando and Bugmy v R?
- What were the appropriate total term and non-parole period, having regard to the standard non-parole period of 10 years and all relevant sentencing factors?
Decision
Objective seriousness: The District Court characterised the offending as serious. The victim was 15 years old, the offender was nearly twice her age, and she was in a vulnerable state having consumed alcohol at his residence. The court noted the victim's soreness upon waking and the offender's dismissive reaction, which demonstrated a troubling absence of remorse at the time of the offence. The offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.
Guilty plea discount: The court accepted that the plea was entered at the first reasonable opportunity and applied a 25% utilitarian discount to the sentence. This reduction acknowledged the practical benefits to the justice system and the victim of an early plea.
Criminal history and recidivism: The offender's criminal history was described as appalling, spanning from Children's Court appearances in 1999 through to multiple adult convictions including robbery, assault, and domestic violence offences. He had spent only five to six years at liberty in the preceding 12 years, with the longest uninterrupted period of freedom being 18 months. The court treated his history as a significant aggravating feature, with protection of the community weighing heavily in the sentencing exercise.
Deprived background and moral culpability: Following the principles in R v Fernando and confirmed in Bugmy v R, the court accepted that the offender's severely deprived upbringing, marked by chronic family violence, parental alcoholism, poverty, and interrupted schooling, reduced his moral culpability to some degree. The court gave weight to this background without treating it as a dominant mitigating factor, noting that the effects of profound deprivation do not diminish over time even where an offender has served multiple sentences. The court balanced this against the serious nature of the offence and the offender's limited prospects of rehabilitation, concluding that specific and general deterrence and community protection remained paramount.
Orders Made
- The offender was convicted of aggravated sexual intercourse without consent with a person under 16 years of age, contrary to section 61J(1) of the Crimes Act 1900.
- A non-parole period of 2 years and 6 months was imposed, commencing 28 March 2014 and terminating 27 September 2016.
- A further term of imprisonment of 2 years and 6 months was imposed, running from 28 September 2016 to 27 March 2019, giving a total sentence of 5 years.
- Parole eligibility date noted as 27 September 2016.
- Upon release to parole, the court recommended supervision by the Probation and Parole Service, including participation in drug and alcohol counselling, sex offender programs, anger management counselling, and employment intervention programs.
Key Takeaways
- The District Court applied a 25% utilitarian discount for a guilty plea entered at the earliest practicable opportunity, consistent with established sentencing practice under the Crimes (Sentencing Procedure) Act 1999.
- Under the principles in R v Fernando as confirmed by the High Court in Bugmy v R, evidence of severe childhood deprivation, family violence, and disadvantage can reduce an offender's moral culpability, even where that offender has previously served custodial sentences.
- A lengthy and escalating criminal history, including periods of re-offending shortly after release, is a significant aggravating factor that elevates the weight given to community protection and specific deterrence.
- Where the standard non-parole period for an offence is 10 years, a sentence substantially below that benchmark may nonetheless be appropriate where mitigating factors, including an early plea and reduced moral culpability, are established, provided the court articulates its reasoning.
- The total sentence of 5 years with a non-parole period of 2 years and 6 months reflected the court's attempt to balance objective seriousness, the offender's background and history, the utilitarian plea discount, and the need to protect the community.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
Cases
- Bugmy v R (2013) 302 ALR 192
- Cahadi v The Queen (2007) 168 A Crim R 41
- Kennedy v R [2010] NSWCCA 260
- Pearce v R 1998 194 CLR 610
- R v Fernando (1992) 76 A CrimR 58
- R v King [2009] NSWCCA 117
- Veen v R No. 2 (1998) Vol 164 CLR 465