Citation: R v AX [2015] NSWDC 75
Court: District Court of New South Wales
Date: 13 March 2015
Judge: Judge S Norrish QC
Background
The offender, AX, was sentenced for two counts of indecent assault on a child under ten years of age, contrary to s 61M(2) of the Crimes Act 1900. The victim was his daughter, who was seven or eight years old at the time of the offending, which occurred between July 1993 and December 1994 at Greystanes, New South Wales.
Both counts involved the offender calling the victim into his bedroom, exposing himself, and forcing her hand onto his penis in a masturbatory motion. On each occasion she pulled away and fled. A diary entry made by the victim was later discovered by her mother around 1994, at which point the offender was confronted and the conduct ceased. The victim did not report the matter to police until October 2012, and charges were not laid until July 2013, nearly two decades after the offending.
The offender had been separately tried in relation to sexual assault allegations brought by his siblings; he was acquitted on those charges. He pleaded guilty to the two counts at issue before a trial on those counts was to commence, following negotiations that had been ongoing during the sibling proceedings.
Legal Issues
- What sentence was appropriate for two counts of indecent assault on a child under ten, having regard to the seriousness of the offending and the offender's personal circumstances?
- What discount, if any, applied for the utilitarian value of the guilty pleas, given the timing and context of those pleas?
- How should significant delay between offending and prosecution affect the sentencing exercise?
- How should the totality principle apply where two sentences were imposed for related offending?
- Whether suspended sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999 were appropriate in the circumstances.
Decision
Judge Norrish sentenced the offender to 18 months imprisonment on count 1 and 21 months imprisonment on count 2. Both terms were suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, meaning the offender was not required to serve actual custody provided he complied with the conditions of the bonds imposed.
In fixing the sentence, the court applied a discount of 12 percent for the guilty pleas, placing the utilitarian value of those pleas slightly above the baseline 10 percent applicable to pleas entered on the day of trial, consistent with the principles in R v Thomson and Houlton. The court accepted that some degree of anticipation by both parties that pleas would be entered meant the discount warranted modest uplift above that baseline.
The court considered the significant delay between the offending in the early 1990s and the prosecution commencing in 2013. The judge noted that an earlier complaint made by the victim in 1999 had been investigated and then withdrawn, a matter not reflected in the agreed facts but raised by the Crown Prosecutor. This extended delay was a relevant factor in the sentencing exercise, consistent with the approach in cases such as R v Todd and R v Bloomfield.
Applying the totality principle, the court indicated that if the sentences were partially accumulated, the appropriate total term would be two years. The judge ultimately concluded that suspended sentences were appropriate given the combination of the offender's circumstances, the delay, and the utilitarian value of the pleas. The court made plain, however, that any breach of the bonds could result in the suspension being revoked, accumulation of the terms, and the fixing of a non-parole period.
Orders Made
- Count 1: Convicted and sentenced to 18 months imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, subject to bond conditions.
- Count 2: Convicted and sentenced to 21 months imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, subject to identical bond conditions.
- The court noted that partial accumulation would have produced a total effective sentence of two years.
Key Takeaways
- The District Court applied a 12 percent guilty plea discount where pleas were entered in circumstances where both parties had anticipated the pleas during earlier proceedings, placing that discount marginally above the 10 percent applicable to day-of-trial pleas under Thomson and Houlton.
- Significant delay between historic sexual offending against a child and the laying of charges remains a relevant consideration in the sentencing exercise, capable of affecting the weight given to various sentencing factors.
- Under the totality principle, a court fixing multiple sentences for related offending must ensure the combined effect of those sentences is proportionate to the overall criminality, whether or not the sentences are accumulated.
- Suspended sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999 remained available in 2015 for serious sexual offences against children, though their appropriateness depended on the specific combination of factors in the individual case.
- A breach of a suspended sentence bond carries significant consequences: the court retained power to revoke the suspension, make sentences accumulative, and impose a non-parole period that might not otherwise have been fixed.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12; Pt 4 Div 1A (standard non-parole periods)
Cases
- DPP (Cth) v De la Rosa [2010] NSWCCA 194
- Douar v R [2005] NSWCCA 455
- Mill v The Queen (1988) 166 CLR 59
- MJL v R [2007] NSWCCA 261
- MPB v R [2013] NSWCCA 213
- Muldrock v The Queen [2011] HCA 39
- Pearce v R (1998) 194 CLR 610
- PWB v R [2011] NSWCCA 84
- R v Bloomfield (1998) 44 NSWLR 734
- R v Gavil [2014] NSWCCA 56
- R v MJR (2002) 54 NSWLR 368
- R v Mauger [2012] NSWCCA 51
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Todd (1982) 2 NSWLR 517
- R v Zamagias [2002] NSWCCA 17
- SM v R [2014] NSWCCA 137