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Local Court 18 September 2015

Director of Public Prosecutions (NSW) v McKellar

[2015] NSWLC 23

Sexual offences
CRIMINAL LAW SENTENCE MORAL CULPABILITY OF OFFENDER VULNERABLE VICTIM IMPACT OF PRE RISK OF RE

Citation: Director of Public Prosecutions (NSW) v McKellar [2015] NSWLC 23
Court: Local Court of NSW
Date: 18 September 2015
Judge(s): Judge G Henson, Chief Magistrate

Background

The defendant, a 20-year-old Aboriginal man, pleaded guilty to engaging in sexual intercourse with a person aged over 14 but under 16 years, contrary to section 66C(3) of the Crimes Act 1900. The offence occurred in February 2014 in Bourke, NSW. At the time, the victim was 15 years old and known to the defendant, and their history included elements of domestic violence.

The defendant was subject to an Apprehended Domestic Violence Order (ADVO) made in July 2013 to protect the victim. In full knowledge of those restrictions, he invited the victim to his home, entered through the front door alone, and then assisted her to climb through a bedroom window to conceal her presence. Police attended the premises on an unrelated matter and found the victim hiding under the bed.

The DPP prosecuted the matter summarily, meaning the maximum available penalty in the Local Court was two years imprisonment rather than the ten-year maximum on indictment. The defendant was charged in May 2015 and entered his plea of guilty in June 2015.

  • What discount, if any, should apply for the guilty plea given the timing of the charge?
  • Whether the victim should be treated as a "vulnerable victim" as an aggravating factor under section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, specifically on the basis that the defendant knew of her homelessness and exploited it.
  • What weight to give the aggravating factors, including commission of the offence while on bail and in breach of an ADVO.
  • How the defendant's background, including significant social disadvantage, mental health issues, and substance dependency, should affect the assessment of moral culpability and the appropriate sentence.
  • Whether a suspended sentence was appropriate in the circumstances.

Decision

Guilty plea discount. The court noted that the defendant was not charged until May 2015 and entered his plea the following month. In those circumstances, the court assessed a 25% utilitarian discount for the plea, consistent with the principles in R v Thompson; R v Houlton (2000) 49 NSWLR 383.

Vulnerability of the victim. The DPP argued that the defendant had knowingly exploited the victim's homelessness, which would have constituted an aggravating factor. The court rejected this on the basis that such an assertion of fact needed to be proved beyond reasonable doubt, and it had not been. However, the court found the victim was nonetheless vulnerable as a matter of law. Drawing on R v JDB and R v Boulad, the court reasoned that the legislative framework itself, in removing consent as a defence, reflects a parliamentary recognition that victims in this age group are inherently vulnerable.

Aggravating factors. The court found the defendant's moral culpability to be above the middle range of seriousness. Two aggravating circumstances were identified: the defendant was on bail for serious violence offences at the time, and he committed the offence against the very person the ADVO was designed to protect. The court emphasised that the furtive manner in which the victim was brought into the premises demonstrated the defendant's awareness that he was breaching the order. These factors were treated as relevant to both personal and general deterrence.

Mitigating factors and sentence. The court then weighed the defendant's significant personal disadvantage. A forensic psychiatry report described a chaotic upbringing, foster care from age three, absent parents, exposure to alcohol and drug abuse, and diagnoses of ADHD and unstable personality structure with chronic substance dependence. Following Bugmy v R [2013] HCA 37 and R v Fernando (1992), the court accepted that this background mitigated the defendant's culpability, though it did not diminish the objective gravity of the offence. Given the defendant's young age, prospects of rehabilitation, engagement with family, and apparent compliance with prior good behaviour bonds, the court imposed a 15-month term of imprisonment that was wholly suspended, with conditions directed toward rehabilitation and supervision.

Orders Made

  • The defendant is convicted, with the conviction recorded as a domestic violence offence.
  • A sentence of 15 months imprisonment is imposed, wholly suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999.
  • The defendant is to enter a good behaviour bond for 15 months, including the following conditions:
  • Be of good behaviour for 12 months.
  • Accept supervision and direction of the Probation and Parole Service, including participation in anger management and drug and alcohol rehabilitation programmes (including residential programmes if appropriate).
  • Engage with the Aboriginal Medical Service and accept treatment as directed by a medical practitioner of that service.

Key Takeaways

  • Proceeding summarily rather than on indictment reduces the maximum available penalty but does not affect how objectively serious the offence is assessed to be, as confirmed in R v Doan (2000) 50 NSWLR 115.
  • Where the Crown relies on a specific factual aggravating circumstance, such as an offender's knowledge of a victim's particular vulnerability, that fact must be proved beyond reasonable doubt; the court will not accept the assertion on the balance of probabilities alone.
  • Under section 66C of the Crimes Act 1900, consent is not a defence, and the court confirmed that the legislative removal of consent reflects an implied recognition that victims in this age group are inherently vulnerable.
  • Committing an offence in breach of an ADVO against the protected person is a well-established aggravating factor with particular relevance to general deterrence, as confirmed in Kennedy v R and R v Macadam-Kellie.
  • Consistent with Bugmy v R and R v Fernando, evidence of profound and ongoing social disadvantage and mental health impairment can mitigate an offender's moral culpability even where the objective seriousness of the offence remains high.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(3), 77
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 12, 21A(2)(j), 21A(2)(l)
- Criminal Procedure Act 1986 (NSW), s 260

Cases:
- BP v R [2010] NSWCCA 159
- Bugmy v R [2013] HCA 37
- Cowling v R [2015] NSWCCA 213
- DPP v Sheldon [2009] NSWLC 17
- Kennedy v R (2008) 181 A Crim R 185
- Markarian v R [2005] HCA 25
- Munda v Western Australia [2013] HCA 38
- R v Boulad [2005] NSWCCA 289
- R v Brett Sharpley [2014] NSWDC 166
- R v Doan (2000) 50 NSWLR 115
- R v Fernando (1992) 76 A Crim R 58
- R v JDB (2005) 153 A Crim R 164
- R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unreported)
- R v Macadam-Kellie [2001] NSWCCA 170
- R v Thompson; R v Houlton (2000) 49 NSWLR 383
- R v Zamagias [2002] NSWCCA 17
- R v Zappala (Court of Criminal Appeal (NSW), 5 November 1991, unreported)
- Yardley v Bates (1979) 22 SASR 108