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District Court 21 October 2015

R v O’DONNELL, David

[2015] NSWDC 425

Sexual offences
CRIMINAL SENTENCE 39 YEARS OLD DISCOUNT FOR THE EARLY PLEA OF GUILTY PRIOR CRIMINAL RECORD ASSESSMENT OF THE STANDARD NON

Citation: R v O'Donnell, David [2015] NSWDC 425
Court: District Court of New South Wales
Date: 21 October 2015
Judge: Judge S Norrish QC

Background

The offender, a 39-year-old man, was sentenced for one count of aggravated indecent assault on a person under 16 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The offence occurred on 6 May 2014 at Oberon, when the offender sexually touched a 15-year-old victim who, due to a birth injury, had an assessed mental age of 12 years. The incident lasted approximately 30 seconds and ceased when the victim told the offender to stop.

The offender had allowed young people to use his premises as a social gathering place. The victim attended on the day in question without any particular purpose. The offender had been drinking heavily that afternoon following a stressful incident at an employment agency, and his alcohol consumption formed part of the sentencing background.

The offender pleaded guilty in the Local Court and was committed for sentence. He had a significant prior criminal history, having been convicted in 2000 of a series of very serious offences including conspiracy to murder, multiple counts of sexual intercourse without consent, malicious wounding, and unlawful imprisonment. He had no further convictions following his release on parole.

  • The appropriate weight to assign to the standard non-parole period of eight years under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the offender's medical condition and health needs warranted a sentencing adjustment
  • Whether the offender's health was causally connected to the offending
  • How to treat the offender's prior serious criminal record in the sentencing exercise
  • Whether the victim's disability constituted a separate aggravating factor
  • Whether special circumstances existed justifying an adjusted ratio between the non-parole period and the balance of the sentence
  • The appropriate discount for an early guilty plea (25%)

Decision

The court accepted that the standard non-parole period of eight years was a legislative guidepost rather than a starting point, consistent with the High Court's approach in Muldrock v R [2011] HCA 25. The court assessed the objective seriousness of the offence, noting it fell well below the mid-range of offending covered by the provision, given the relatively brief duration of the assault and the absence of any grooming or prior indecency toward the victim.

The offender's significant medical condition, the precise nature of which was treated sensitively by the court, was considered in the context of hardship in custody. The court found that while the condition made imprisonment more burdensome than it would be for a healthy offender, it was not causally connected to the offence itself. The court therefore gave it limited weight in mitigation, principally in the context of the hardship of imprisonment and the finding of special circumstances.

The prior criminal record, described by the court as very serious, disentitled the offender to any special leniency. However, the court noted that the offender had remained offence-free for a substantial period after release on parole, had shown some capacity for rehabilitation, and had good prospects going forward given arrangements in place to address his alcohol misuse and mental health needs. Expressions of remorse were assessed as limited.

The court found that the victim's disability was not an additional aggravating factor beyond what was already captured by the aggravated nature of the offence as charged. Special circumstances were found to exist, warranting a departure from the standard one-third ratio between the non-parole period and the balance of the sentence, primarily to allow for adequate supervision on parole given the offender's health and rehabilitation needs.

Orders Made

• Release to parole at expiry of non-parole period (20 July 2016)
• Balance of sentence of one year and ten months to be supervised by the Parole Authority
• Recommendation that offender be kept at Bathurst Correctional Centre
• Direction that a sealed report from Professor of Medicine be conveyed to Justice Health Unit at Bathurst Gaol
• Direction that letter from Nurse Unit Manager Ms Pauline Hearst be delivered upon offender's admission to custody

The sentencing remarks do, however, confirm the following outcomes:

  • A finding of special circumstances was made, resulting in a non-parole period of approximately nine months, with a balance of sentence of one year and ten months remaining under parole supervision.
  • A 25% discount was applied for the early guilty plea.
  • The court directed that medical documentation and medication be conveyed to the Justice Health Unit at Bathurst Gaol upon the offender's admission.

Key Takeaways

  • The District Court confirmed that the standard non-parole period of eight years for aggravated indecent assault under s 61M(2) operates as a guidepost under the Muldrock framework, not a starting point or presumptive sentence, and must be assessed against the full range of objective seriousness.

  • A serious prior criminal record, even where convictions are dated and no intervening offending occurred, can disentitle an offender to leniency and remains a relevant consideration in the sentencing exercise.

  • Where a victim's disability is already reflected in the charge as an element that makes the offence "aggravated," it does not automatically constitute a further discrete aggravating factor at sentencing.

  • An offender's significant medical condition may make imprisonment more onerous and can ground a finding of special circumstances to extend the supervision period on parole, even where the condition is not causally connected to the offending.

  • Causal connection between an offender's health or personal circumstances and the commission of the offence is relevant to the weight given to those circumstances in mitigation: the absence of such a connection limits, though does not entirely remove, their mitigating value.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases
- Muldrock v R [2011] HCA 25
- Markarian v The Queen [2005] HCA 25
- Pearce v R (1998) 194 CLR 610
- Veen (No.2) v The Queen (1988) 164 CLR 465
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- R v Higgins [2002] NSWCCA 407
- R v Badanjak [2004] NSWCCA 395
- R v Miranda (2002) 128 A Crim R 362
- R v Vachalec [1981] 1 NSWLR 351
- R v Smith (1987) 44 SASR 587
- Bailey v Director of Public Prosecutions (1988) 62 ALJR 319