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District Court 5 November 2014

R v Flax

[2014] NSWDC 268

Sexual offences
CRIMINAL LAW PARTICULAR OFFENCE OFFENCES AGAINST THE PERSON PERFORMED FELLATIO ON THE CHILD GRANDFATHER LIKE RELATIONSHIP

Citation: R v Flax [2014] NSWDC 268
Court: District Court of New South Wales
Date: 5 November 2014
Judge: Cogswell SC DCJ

Background

The offender, a 66-year-old man, was sentenced for a single offence of sexual intercourse with a child under 10, contrary to section 66A of the Crimes Act 1900 (NSW). The victim was a seven-year-old boy who knew the offender as "Poppy," reflecting a grandfather-like relationship spanning the child's entire life. The offence occurred on one Friday night between Boxing Day 2012 and the end of January 2013, while the offender was babysitting the child and his brother.

The offender was arrested on 14 February 2013 and committed for trial in September 2013, with the trial listed for April 2014. He entered a guilty plea approximately one to two weeks before the trial date, on 27 March 2014. Throughout proceedings, he vehemently denied committing the offence, maintaining that he pleaded guilty to protect his family and to spare the victim and his brother from the court process.

Three factors dominated the sentencing exercise: the extreme gravity of the offence, the offender's denial of guilt notwithstanding his plea, and the serious medical condition of his long-term partner, who was also the victim's step-grandmother.

  • What weight should be given to a guilty plea entered by an offender who maintains he did not commit the offence?
  • How should the court treat hardship caused to a third party, specifically a sick and disabled partner, when determining whether to impose a custodial sentence?
  • How does the standard non-parole period of 15 years inform the appropriate sentence for this offence, and what factors justify departing from it?
  • Whether special circumstances existed to justify adjusting the ratio between the head sentence and the non-parole period below the statutory norm.

Decision

Plea of guilty despite denial. The court applied the principle from Meissner v The Queen (1995) 184 CLR 132, which confirms that a person may plead guilty for reasons beyond a belief in their own guilt, including to protect family members, and that such a plea nonetheless constitutes an admission of all elements of the offence. Cogswell SC DCJ made clear that the offender had to be sentenced on the basis of his guilty plea and the agreed facts, regardless of his persistent denials. The plea was entered relatively late, and a 10% discount was applied accordingly.

Third-party hardship. The offender had been the full-time carer for his partner, who suffers from insulin-dependent diabetes, heart disease, gross obesity, and hypertension. Her general practitioner expressed the view that she would require nursing home admission without his care. Drawing on Dipangkear v R [2010] NSWCCA 156 and R v Edwards (1996) 90 ACrimR 510, the court acknowledged that imprisoning an offender frequently causes hardship to others, sometimes of a serious or extreme nature. The court accepted the hardship was real but concluded it was not of a nature that would warrant a non-custodial sentence for an offence of this gravity.

Objective seriousness and standard non-parole period. The court treated the offence as carrying the highest fixed maximum sentence (25 years) and the highest standard non-parole period (15 years) in the relevant legislative scheme. While the standard non-parole period was a relevant reference point, the court placed the offence below the middle of the range but not towards the bottom, given that it was spontaneous, isolated, and involved no premeditation or planning, while also involving a significant breach of trust.

Mitigating factors and special circumstances. The offender had no prior criminal history, was assessed as posing a low risk of reoffending by both a psychologist and a forensic psychiatrist, and had previously been of good character. The court found special circumstances justifying a significant reduction in the non-parole period below the statutory ratio, pointing to the offender's age (66), the fact that this was his first time in custody, and his first offence. The court sentenced him to five years' imprisonment (after the 10% reduction from a starting point of six years), with a non-parole period of two years.

Orders Made

  • Five years' imprisonment imposed for the offence of sexual intercourse with a child under 10 (s 66A, Crimes Act 1900).
  • Non-parole period of two years, commencing 5 November 2014 and expiring 4 November 2016.
  • Balance of term of three years, commencing 5 November 2016 and expiring 4 November 2019.
  • First eligible parole date: 4 November 2016.

Key Takeaways

  • A guilty plea entered for reasons other than belief in one's own guilt, such as protecting family members, is nonetheless a valid admission of all elements of the offence and must be the basis for sentencing, as confirmed by the High Court in Meissner v The Queen.

  • Hardship to a third party caused by a custodial sentence, even where that hardship is serious or extreme, does not ordinarily warrant a non-custodial sentence for a gravely serious offence; the District Court applied this established principle from the Court of Criminal Appeal in Edwards and Dipangkear.

  • The standard non-parole period functions as a legislative benchmark rather than a fixed starting point; where an offence is serious but below the mid-range, a sentencing court may fix a head sentence below the standard non-parole period while still treating the benchmark as a relevant reference.

  • Special circumstances capable of justifying a non-parole period significantly below the statutory ratio can arise from a combination of the offender's advanced age, first-time imprisonment, and absence of any prior offending.

  • A late guilty plea, entered only one to two weeks before a listed trial date after substantial preparation has occurred, attracted only a 10% discount in this case, reflecting the limited utilitarian benefit to the criminal justice system.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A (sexual intercourse with a child under 10; maximum 25 years' imprisonment; standard non-parole period 15 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5A)

Cases
- Meissner v The Queen (1995) 184 CLR 132
- Dipangkear v R [2010] NSWCCA 156
- R v Edwards (1996) 90 ACrimR 510
- R v Fisher (1989) 40 ACrimR 442
- R v Wirth (1976) 14 SASR 291