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District Court 22 June 2017

R v Rolfe

[2017] NSWDC 186

Sexual offences
SENTENCE SEXUAL INTERCOURSE CHILD 10 14 YEARS

Citation: R v Rolfe [2017] NSWDC 186
Court: District Court of New South Wales
Date: 22 June 2017
Judge(s): Bright DCJ

Background

The offender, a man born in 1987, was in a short-term relationship with the mother of the victim, a 12-year-old girl. He would stay at the family home on weekends. Within weeks of the relationship beginning, he commenced sexual contact with the child.

The offending involved a single act of penile-vaginal intercourse without a condom, followed by an extended exchange of sexually explicit messages and images over a messaging application called Kik. The Kik conversation, which included requests for and exchange of nude images, was discovered by the child's mother on the child's iPod and reported to police.

The offender pleaded guilty at Newcastle District Court on 9 March 2017 to two counts on the indictment: sexual intercourse with a child aged between 10 and 14 years, and intentionally procuring a child under 16 years for unlawful sexual activity. Two additional offences of aggravated indecent assault were dealt with on Form 1 (meaning they were taken into account in sentencing without separate convictions). The offender also faced revocation of four community-based bonds imposed in 2013 for unrelated domestic violence and property offences.

  • What guilty plea discount was appropriate given the timing of the plea?
  • How should multiple offences arising from the same course of conduct be structured on sentence, having regard to the principle of totality and the rule in Pearce v The Queen?
  • What custodial sentences were appropriate for each count, taking into account the Form 1 offences?
  • What orders should be made in respect of the four revoked section 9 bonds?

Decision

Bright DCJ allowed a guilty plea discount of 15%. The plea was entered on the day the victim's evidence was scheduled to be pre-recorded, with a trial date already fixed for November 2017. The relatively late timing of the plea informed the modest discount applied.

The Judge identified the principal offence as Count 1, sexual intercourse with a child aged 10 to 14 years, which carries a maximum of 16 years imprisonment. The starting point before discount was five years. Count 2, procuring the child for unlawful sexual activity (maximum 15 years), had a starting point of three years before discount. Both sentences incorporated the associated Form 1 aggravated indecent assault offences.

Applying the totality principle, Bright DCJ ordered partial accumulation of the two sentences rather than full concurrency. This approach reflected the distinct nature of each offence while avoiding a crushing aggregate sentence. The statutory non-parole period ratio was varied to a greater degree for Count 2 than Count 1 as a consequence of accumulation, consistent with established sentencing practice.

On the revoked bonds, the offender received a fixed term of one month imprisonment for each of the four prior offences, dated from his arrest in February 2016, meaning those terms had already been served by the time of sentencing.

Orders Made

  • Count 2 (procuring a child for unlawful sexual activity, with Form 1 aggravated indecent assault): non-parole period of 1 year and 6 months from 24 February 2016 to 23 August 2017; balance of term of 1 year from 24 August 2017 to 23 August 2018. Starting point: 3 years, discounted 15%.
  • Count 1 (sexual intercourse with a child aged 10 to 14 years, with Form 1 aggravated indecent assault): non-parole period of 2 years and 2 months from 24 February 2017 to 23 April 2019; balance of term of 2 years and 1 month from 24 April 2019 to 23 May 2021. Starting point: 5 years, discounted 15%.
  • Total effective sentence: 5 years and 3 months, with a non-parole period of 3 years and 2 months; earliest parole eligibility date 23 April 2019.
  • Revoked bonds (four offences): fixed term of 1 month imprisonment for each, dated 24 February 2016 to 23 March 2016.

Key Takeaways

  • A guilty plea entered on the day of scheduled pre-recorded witness evidence, with a trial date already set, attracted a discount of only 15% rather than the higher discounts available for earlier pleas.
  • Where an offender is sentenced on multiple counts arising from a course of child sexual offending, partial accumulation of sentences may be appropriate to reflect the distinct criminality of each offence while respecting the totality principle as stated in Pearce v The Queen (1998) 194 CLR 610.
  • Form 1 offences (here, two counts of aggravated indecent assault) were taken into account in imposing sentence on the principal counts, without attracting separate convictions or additional terms.
  • Under the sentencing framework applied, where partial accumulation is ordered, the statutory non-parole period ratio may be varied to a greater degree for the lesser sentence to achieve a just overall result.
  • Pre-sentence custody ran from the date of arrest (24 February 2016), and the revoked bond sentences were back-dated to that date, meaning they were effectively served before the sentencing hearing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61M(2), 66C(1), 66EB(2)(a), 195
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5(1), 37
- Crimes (Domestic and Personal Violence) Act 2007 (NSW): ss 13, 14

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- R v Nelson [2016] NSWCCA 130