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District Court 15 June 2017

R v AS

[2017] NSWDC 153

Sexual offences
CRIMINAL LAW SENTENCE AGGRAVATED INDECENT ASSAULT.

Citation: R v AS [2017] NSWDC 153
Court: District Court of New South Wales
Date: 15 June 2017
Judge: Bright DCJ

Background

The offender, a man born in March 1969, stood trial at the Newcastle District Court in March 2017 on nine counts involving two complainants. The complainants were both children under the age of 16 at the time of the offending, which took place at a residential address in Raymond Terrace between 2010 and 2012. The offender had been in a relationship with the mother of one complainant and had a familial connection to both children through that relationship.

A jury returned guilty verdicts on five counts: two counts of aggravated sexual assault involving the first complainant (NH, who was 13 years old at the time) and three counts of aggravated indecent assault involving the second complainant (SH, who was 13 or 14 years old at the time). The offender was acquitted on the remaining four counts.

The matter then proceeded to sentencing before Bright DCJ. The offender had been in custody since the verdict on 7 April 2017, and had also served an earlier period of 8 months and 21 days in pre-sentence custody. The parties agreed the sentence was to commence on 17 July 2016.

  • What were the appropriate indicative sentences for each of the five offences, having regard to the maximum penalties, standard non-parole periods, and the objective and subjective circumstances of the offending?
  • Whether an aggregate sentence was appropriate under section 53A of the Crimes (Sentencing Procedure) Act 1999, and if so, how totality should be applied across offences involving two separate victims and distinct episodes of criminality.
  • Whether special circumstances existed justifying a departure from the statutory non-parole period ratio under section 44(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the fact that the offences were capable of summary disposal was a matter to be taken into account in mitigation of sentence.

Decision

Bright DCJ sentenced the offender on all five counts by way of an aggregate sentence under section 53A(1) of the Crimes (Sentencing Procedure) Act 1999. In arriving at the indicative sentences for each count, his Honour had regard to the maximum penalties (20 years for counts 1 and 2; 10 years for counts 4, 5 and 6) and the applicable standard non-parole periods (10 years and 8 years respectively). The objective seriousness of the conduct, the vulnerability of the complainants, and the breach of trust inherent in the domestic setting were all relevant to the sentencing exercise.

His Honour determined indicative sentences of 7 years (with a non-parole period of 4 years 6 months) for each of counts 1 and 2, and shorter terms for counts 4, 5 and 6 (ranging from 12 to 18 months with corresponding non-parole periods). In considering totality, Bright DCJ took into account that the offending involved two separate victims and distinct episodes of criminality, which would have warranted partial accumulation of separate sentences.

The court found special circumstances under section 44(2), justifying a variation to the statutory ratio between the non-parole period and the balance of term. His Honour also accepted that the availability of summary disposal was a proper matter to take into account in mitigation, following the approach in R v Nelson and related authorities. The aggregate sentence imposed was a total term of 10 years, with a non-parole period of 6 years and 6 months.

Orders Made

  • The offender was convicted on counts 1, 2, 4, 5 and 6.
  • An aggregate sentence of 10 years was imposed, commencing 17 July 2016.
  • Non-parole period of 6 years and 6 months, running from 17 July 2016 to 16 January 2023.
  • Balance of term of 3 years and 6 months, running from 17 January 2023 to 16 July 2026.
  • Special circumstances found; statutory ratio varied under section 44(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Earliest eligible date for release on parole: 6 January 2023.

Key Takeaways

  • The District Court applied an aggregate sentencing approach under section 53A of the Crimes (Sentencing Procedure) Act 1999, with indicative sentences provided for each individual count in accordance with section 53A(2)(b).
  • Where offending involves multiple victims and distinct episodes of criminality, the totality principle requires partial accumulation to reflect the full weight of that criminality, even when an aggregate sentence is ultimately imposed.
  • Under the approach confirmed in R v Nelson and related Court of Criminal Appeal authority, the fact that offences were capable of summary disposal remains a legitimate mitigating consideration at sentencing.
  • A finding of special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 permits the sentencing court to vary the statutory ratio between the non-parole period and the balance of term, extending the supervised release period.
  • Standard non-parole periods for aggravated sexual assault (10 years) and aggravated indecent assault (8 years) operate as legislative guideposts, but the sentencing court must still calibrate the sentence to the particular objective and subjective circumstances of the case.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 3A, 44(2), 53A(1), 53A(2)(b)

Cases
- R v Nelson (2016) NSWCCA 130
- R v Hibberd [2009] NSWCCA 20
- Cowling v R (2015) NSWCCA 213
- R v Dent (unreported, NSWCCA, 14 March 1991)
- Henderson v R [2016] NSWCCA 8
- R v Palmer [2005] NSWCCA 349