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District Court 20 February 2015

R v Devlin

[2015] NSWDC 181

Sexual offences
CRIMINAL LAW SENTENCE INDECENT ASSAULT

Citation: R v Devlin [2015] NSWDC 181
Court: District Court of New South Wales
Date: 20 February 2015
Judge: Berman SC DCJ

Background

The offender had pleaded guilty to indecent assault and was acquitted by a jury on a separate charge of sexual intercourse without consent. At an earlier sentencing hearing in December 2014, the court imposed a sentence of imprisonment and referred the offender for assessment as to his suitability for home detention.

His Honour had initially reasoned that indecent assault did not disqualify the offender from home detention, relying in part on the heading to section 61I of the Crimes Act ("Sexual assault"), which suggested that sexual assault and indecent assault were distinct offences. A home detention report was prepared and found the offender suitable.

However, the Crown raised arguments challenging that eligibility finding, prompting the court to revisit the question. This second sentencing judgment resolved both the eligibility issue and the final sentence.

  • Whether an offender convicted of indecent assault on an adult is eligible for a home detention order under the Crimes (Sentencing Procedure) Act
  • Whether section headings in the Crimes Act can be used as an aid to statutory interpretation, given the Interpretation Act
  • What sentencing options remained available once home detention was ruled out, and which option was least inappropriate in the circumstances

Decision

Home detention eligibility

The court accepted the Crown's submission that the offender was ineligible for home detention. His Honour acknowledged that his initial reasoning, which relied on the section heading of s 61I of the Crimes Act, was undermined by the Interpretation Act, which directs that section headings are to be disregarded in statutory interpretation.

More persuasively, the court compared the eligibility provisions for home detention with those for an intensive corrections order (ICO) under s 66 of the Crimes (Sentencing Procedure) Act. The ICO provisions expressly use language that would include indecent assault, whereas the home detention provisions do not. Parliament's deliberate use of different language in each regime indicated that home detention was not available for this offence. The court also noted that the Judicial Commission's sentencing database contained no instance of home detention being imposed for indecent assault.

Remaining sentencing options

With home detention excluded, and an ICO unavailable for two independent reasons (the referral had not been made before sentence was imposed as required by s 69 of the Crimes (Sentencing Procedure) Act, and in any event the offender's circumstances made him unsuitable for community service), only two options remained: a suspended sentence or full-time imprisonment.

His Honour described this as an "extremely unsatisfactory position" and characterised the choice as one between two undesirable outcomes. After considerable hesitation, the court imposed a suspended sentence. The judge was candid that this outcome failed to reflect the objective gravity of the conduct, noting that the offender would, in effect, go unpunished. Nevertheless, given the offender's prior good character and the highly emotionally charged context of the offending, full-time imprisonment was considered equally unfit. The court also observed that no clear policy reason existed for why a person convicted of indecently assaulting an adult could receive an ICO but not home detention.

Orders Made

  • The previously imposed sentence of imprisonment was suspended under s 12 of the Crimes (Sentencing Procedure) Act for the duration of that sentence; the earlier non-parole period was set aside
  • The offender was required to enter into a good behaviour bond for the period of the sentence, subject to the following conditions:
  • Supervision by the Probation and Parole Service
  • Attendance at psychological services for specialist counselling on domestic abuse, as directed by the Probation and Parole Service
  • Compliance with any other treatment referrals ordered by the Probation and Parole Service
  • No consumption of alcohol for the duration of the bond
  • Submission to random breath testing as required by the Probation and Parole Service
  • The automatic stay arising from the home detention referral was lifted

Key Takeaways

  • Under the Crimes (Sentencing Procedure) Act, home detention is not available as a sentencing option for an offender convicted of indecent assault on an adult.
  • Section headings in NSW legislation are to be disregarded when interpreting statutory provisions, pursuant to the Interpretation Act; reliance on a heading alone is an insufficient basis for determining eligibility under the Crimes (Sentencing Procedure) Act.
  • Comparing the eligibility language across different community-based sentencing regimes is a relevant interpretive tool: where Parliament uses different language in the ICO provisions and the home detention provisions, that difference is taken to be intentional.
  • A referral for ICO assessment can only be made before a sentence of imprisonment is imposed, pursuant to s 69 of the Crimes (Sentencing Procedure) Act; once sentence has been passed, that option is procedurally closed.
  • The District Court openly acknowledged that the interaction of these eligibility rules produced a result disproportionate to the offending, and flagged an apparent inconsistency in the policy underlying the distinction between home detention and ICO eligibility for the same category of offence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 66, 69, 76
- Crimes Act 1900 (NSW), s 61I
- Interpretation Act 1987 (NSW)

Cases
No cases were cited in this judgment.