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District Court 1 December 2016

R v YY No. 3

[2016] NSWDC 364

Sexual offences

Citation: R v YY No. 3 [2016] NSWDC 364
Court: District Court of New South Wales
Date: 1 December 2016
Judge(s): A Haesler SC DCJ

Background

The offender, a man aged 70 at the time of sentencing, was the maternal grandfather of the complainant. He was tried by judge alone at Wollongong District Court after waiving his right to a jury trial. The offending occurred between 2004 and 2006 at various locations in the Illawarra region, when the complainant was aged between seven and eleven.

The indictment originally contained 13 counts. The offender was acquitted of count 10 for want of any supporting evidence, and convicted of the remaining 12 counts. The offences ranged from indecent assault and acts of indecency to sexual intercourse with a child, all committed against his granddaughter within family settings she had every reason to trust.

The sentencing judgment addressed the objective seriousness of each offence, the applicable maximum penalties and standard non-parole periods, the offender's personal circumstances (including age, health, and good character), the victim's impact statement, and the application of the totality principle to an aggregate sentence.

Legal Issues

  • How to assess the objective seriousness of each of 12 discrete child sexual offences across three different statutory provisions, each carrying different maximum penalties and (where applicable) different standard non-parole periods
  • Whether the standard non-parole period for s 61M(2) offences (indecent assault of a child) can be applied proportionately alongside that for s 66C(2) offences (sexual intercourse with a child)
  • How to structure an aggregate sentence that reflects the totality principle without creating a crushing or disproportionate result for a 70-year-old first offender in poor health
  • Whether the offender's age, medical condition, and good character constituted special circumstances justifying a longer parole period
  • The proper treatment of post-conviction self-harm in sentencing

Decision

Objective seriousness of the individual offences

The court assessed the 12 counts across three groups. The six s 61M(2) indecent assault counts (counts 1, 2, 3, 4, 6 and 13) each involved touching the complainant's body over her clothes, with no skin-on-skin contact and no genital contact. While all were serious, the court placed them below the objective midrange, toward the lower end of the range of serious offending for that provision (at [36]). Count 8, also a s 61M(2) offence, involved skin-on-skin contact and masturbation to ejaculation and was assessed as objectively in the middle of the range (at [37]). The two s 61O(2) acts of indecency (counts 5 and 7) were described as gross acts likely designed to test whether the complainant would complain, and were found to warrant custodial sentences (at [38]). The two s 66C(2) sexual intercourse counts (counts 11 and 12) involved brief but genuine penetration; though below the midrange due to brevity and limited contact, they were characterised as serious crimes warranting very significant punishment (at [39]).

Standard non-parole periods and proportionality

The court acknowledged the criticism, including by Hulme RSDCJ in BT v R, of the legislative relationship between the maximum penalty and the standard non-parole period for s 61M(2) offences. However, it accepted that the eight-year standard non-parole period remains binding (at [27]-[28]). The court was careful to note that sentencing must not begin by working back from the maximum penalty or standard non-parole period, following the approach in Markarian (at [30]). It also observed that the standard non-parole periods for s 61M(2) and s 66C(2) offences are close in numerical terms despite the materially different gravity of those offences, and that proper proportionality required differentiated responses (at [28]).

Totality, accumulation, and the aggregate sentence

The court noted the obligation to impose an appropriate sentence for each offence while ensuring the overall sentence is just and appropriate to the totality of the offending, consistent with Mill v The Queen (at [41]). It rejected any notion that sentences should be made concurrent simply because the conduct formed part of one course of criminal behaviour, citing R v MAK (at [42]). At the same time, the court accepted that the severity of cumulative sentences increases at a greater rate than their length, and that an extremely long aggregate sentence can become crushing, particularly for a 70-year-old offender (at [43]).

Subjective factors and special circumstances

The offender was treated as a first offender and had strong evidence of good character, including testimonials from family and friends (at [45]-[46]). His prior good character was given reduced weight given the repeated nature of the offending over several years (at [57]). The court found that his age of 70 and his medical conditions (arthritis and ischaemic heart disease) made imprisonment more burdensome than for an average prisoner, constituting special circumstances warranting a longer parole period (at [59]). Post-conviction self-harm could not be taken into account in mitigation, consistent with Christodoulou (at [52]). The offender received no discount for a guilty plea, having maintained his innocence and exercised his right to trial, but was not penalised for doing so (at [56]).

Orders Made

  • Aggregate sentence of eight years imprisonment imposed
  • Non-parole period of five years, commencing 23 November 2015 and expiring 22 November 2020
  • Balance of sentence of three years to commence on 23 November 2020, expiring 22 November 2023
  • Offender eligible for consideration for release to parole on 22 November 2020
  • Finding of special circumstances made, reflected in the extended parole period
  • Medical reports to accompany the warrant to the gaol

Key Takeaways

  • The District Court confirmed that the eight-year standard non-parole period for s 61M(2) indecent assault of a child remains binding, despite judicial criticism of its proximity to the standard non-parole period for the more serious s 66C(2) sexual intercourse offence; proper proportionality nonetheless requires differentiated sentencing responses between those two offence types (at [27]-[28]).

  • Under the totality principle, concurrent sentences are not appropriate merely because offences form part of a single course of conduct, and courts must avoid any suggestion of a discount for multiple offending; however, the compounding severity of accumulated sentences, particularly for elderly offenders, is a legitimate consideration in structuring an aggregate sentence (at [41]-[43]).

  • A 70-year-old offender's age and poor physical health can constitute special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999, warranting a longer parole period relative to the non-parole period, because imprisonment is more burdensome for such an offender than for the average prisoner (at [59]).

  • Repeated offending over multiple years significantly diminishes the mitigating weight of an offender's prior good character, even where that character is strongly attested by family, friends, and community members (at [57]).

  • Post-conviction self-harm by an offender cannot be taken into account as a mitigating factor in sentencing, consistent with the Court of Criminal Appeal's decision in Christodoulou, on the basis that treating it as mitigation could incentivise self-harm by offenders seeking to reduce their sentences (at [52]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- BT v R [2010] NSWCCA 267
- Burrell (2000) 114 A Crim R 207
- Clarkson [2011] VSCA
- Clinch (1994) 72 A Crim R 301
- Christodoulou [2008] NSWCCA 102
- R v Gavel [2014] NSWCCA 56
- GSH v R [2009] NSWCCA 214
- Hili v R [2010] HCA 45, (2010) 242 CLR 520
- Hoare v R (1989) 167 CLR 348
- R v KNL [2005] NSWCCA 260
- L, unreported NSWCCA 17/06/96
- R v MAK [2006] NSWCCA 381
- Markarian (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen (2011) 244 CLR 120
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- R v NJK [2011] NSWCCA 151
- PGM [2008] NSWCCA 172
- R v Pham [2015] HCA
- Ryan (2001) 206 CLR 267
- Sellen (1991) 57 A Crim R 313
- Van Ryn [2016] NSWCCA 1
- Way v R [2004] NSWCCA 131
- R v Windle [2012] NSWCCA 222
- Yates [1985] VR 41 at 50