Citation: R v Roy De La Torre (No 2) [2014] NSWDC 392
Court: District Court of New South Wales
Date: 3 October 2014
Judge(s): Mahony SC DCJ
Background
The offender, a man in his mid-fifties with a lengthy prior history of serious sexual offences against young girls, was subject to a five-year Extended Supervision Order (ESO) made by the Supreme Court in October 2011. That order imposed strict conditions, including prohibitions on contact with children and restrictions on internet and pornography access.
On 21 April 2013, the offender approached a six-year-old girl at a public reserve in Coogee. He engaged the child in conversation and then placed his hand under her skirt, touching her in the vicinity of her vagina over her underwear. He was identified partly through electronic tracking records maintained under the ESO. On 22 April 2013, following his arrest, a search warrant at his home revealed child abuse material, to which he later pleaded guilty.
The offender had previously spent nearly 20 years in custody for sexual offences, including kidnapping, abduction, indecent assault, and sexual intercourse with children aged between five and eleven years. The current offending occurred within the active ESO period and in direct breach of its conditions.
Legal Issues
- What sentence was appropriate for the aggravated act of indecency on a child under 16 years (Count 1), having regard to the offender's criminal history, the breach of the ESO, and the standard non-parole period of eight years?
- What sentence was appropriate for possession of child abuse material (Count 2), to which the offender pleaded guilty on the first day of trial?
- How should the principles of proportionality, totality, and the avoidance of double punishment apply when structuring concurrent and cumulative terms across the two counts?
Decision
On Count 1, the District Court found that although the physical act was not at the highest end of the scale, the objective seriousness of the offending was significantly elevated by the circumstances: the offender deliberately targeted a young child in a public space, the victim was only six years old, and the offending occurred in direct breach of the ESO. The court weighed the absence of evidence of physical injury against the serious breach of the supervision regime and the strong need for community protection given the offender's entrenched pattern of offending.
The court found that general and specific deterrence carried particular weight. The lengthy and consistent history of sexual offending against young children, spanning decades and including multiple custodial terms, pointed to a high risk of reoffending and a need to protect the community. The court noted the offender's poor prospects for rehabilitation and the limited utilitarian value of any plea discount on Count 1, as the guilty plea had not been entered at the earliest opportunity.
On Count 2, the offender was entitled to a ten percent utilitarian discount for his guilty plea on the first day of trial. The court imposed a fixed term for that count. Applying the principles from Pearce v The Queen and Cahadi v The Queen, the court structured the sentences with partial concurrency and partial accumulation to achieve an outcome that was proportionate and avoided double punishment, while reflecting the distinct criminality of each offence.
Orders Made
- Count 1 (aggravated act of indecency on a child under 16): non-parole period of 4 years and 6 months commencing 23 April 2013, terminating 22 October 2017; balance of term of 1 year and 6 months commencing 23 October 2017, terminating 22 April 2019
- Count 2 (possession of child abuse material): fixed term of 2 years and 3 months commencing 23 October 2016, terminating 22 January 2019 (partially concurrent with Count 1)
- Parole eligibility date: 23 January 2019
- Two certificate offences under the Crimes (High Risk Offenders) Act 2006 (breach of ESO conditions) dismissed pursuant to s 167 of the Criminal Procedure Act 1986
Key Takeaways
- Committing a serious sexual offence against a child whilst subject to an Extended Supervision Order is a significant aggravating factor that weighs heavily in the sentencing exercise.
- Where an offender has a long and consistent history of sexual offending against children, courts will place significant weight on community protection and specific deterrence, even when the physical act in the immediate offence is not assessed as the most serious within its category.
- Under the principle of totality confirmed in Pearce v The Queen (1998) 194 CLR 610, sentences for multiple offences must be structured to achieve a result that is proportionate to the overall criminality without resulting in double punishment for the same conduct.
- A ten percent utilitarian discount applied to a guilty plea entered on the first day of trial reflects the limited, though real, utilitarian benefit to the criminal justice system of a plea made at that stage rather than before trial.
- Electronic monitoring records maintained under an ESO can provide direct evidence of an offender's movements and form part of the investigative basis for a criminal prosecution.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 91H(2)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 12
- Crimes (Serious Sex Offenders) Act 2006 (NSW), s 9(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 166, 167
- Evidence Act 2005 (NSW), ss 97, 98
Cases:
- Cahadi v The Queen (2007) 168 A Crim R 41
- Cartwright v R (1989) 17 NSWLR 243
- Pearce v The Queen (1998) 194 CLR 610
- R v Booth [2009] NSWCCA 89
- R v Gent [2005] NSWCCA 370
- R v Harrison (1997) 93 A Crim R 314
- R v McNaughton (2006) 66 NSWLR 566
- R v Tran [1999] NSWCCA 109
- See v R [2013] NSWCCA 81
- State of New South Wales v Roy De La Torre [2011] NSWSC 1263
- Veen v The Queen (No 2) (1998) 164 CLR 465
- Weininger v R (2003) 212 CLR 629
- Wray v R [2014] NSWCCA 166