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District Court 15 December 2017

R v NAHN, William

[2017] NSWDC 432

Sexual offences
CRIMINAL SENTENCE AFTER TRIAL SEXUAL INTERCOURSE WITHOUT CONSENT INDECENT ASSAULT WHETHER STANDARD NON

Citation: R v NAHN, William [2017] NSWDC 432
Court: District Court of NSW
Date: 15 December 2017
Judge: Judge S Norrish QC

Background

The offender was convicted by a jury of attempted sexual intercourse without consent and indecent assault, both committed on 10 June 2016. The offences occurred inside the women's toilets of a licensed venue in Surry Hills during a workplace farewell function. The complainant was physically vulnerable at the time, having consumed a significant amount of alcohol.

The offender and complainant were known to each other through their employment at Transport NSW, though they had no prior sexual contact. At trial, the offender denied any sexual contact with the complainant. The jury rejected that account and returned guilty verdicts on the alternative count of attempted sexual intercourse without consent (count 2) and the indecent assault count (count 3).

The matter came before Judge Norrish for sentencing on 15 December 2017, at which point the offender had been in custody since the verdict on 30 October 2017, with two days of pre-sentence custody also taken into account.

  • Whether a standard non-parole period (SNPP) applies to the offence of attempted sexual intercourse without consent, given that s 61P of the Crimes Act 1900 provides that an offender convicted of such an attempt is liable to the same penalty as for the completed offence under s 61I
  • How to assess the objective seriousness of the offending in the absence of a SNPP
  • How to treat a psychological report that conflicted with the offender's evidence of denial at trial
  • Whether a subsequent offence could be considered in sentencing, and if so, to what extent
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio
  • How to structure the sentences for two discrete but related offences, applying the totality principle

Decision

Standard non-parole period. The judge initially considered that a SNPP of seven years might apply to the attempted sexual assault count, given that s 61P renders an offender liable to the same penalty as for the completed offence, and the Table in the Crimes (Sentencing Procedure) Act 1999 lists s 61I as carrying a SNPP of seven years. However, the Crown drew attention to the Court of Criminal Appeal's decision in DAC v R, where Howie J (with Tobias JA and Rothman J) held that no SNPP applies to attempted sexual intercourse without consent. That conclusion drew on the Attorney General's second reading speech, which made clear that attempt offences were not intended to be included in the Table except for various forms of attempted murder. Judge Norrish accepted the DAC reasoning and sentenced without reference to a SNPP.

Objective seriousness. Having resolved that no SNPP applied, the judge then placed the offending just below the middle range of objective seriousness. Key factors included the absence of planning (the offence was opportunistic), the limited duration of the conduct, and the absence of threats of violence before or after. Aggravating features included the vulnerability of the complainant due to her intoxicated state, and the offender's exploitation of that vulnerability.

Psychological report and denial. The offender's psychological report was treated with caution because its contents conflicted with his evidence at trial that he had committed no sexual contact. The judge noted this tension but nonetheless had regard to the offender's mental condition in mitigation to the extent that it could properly be considered.

Subsequent offence and special circumstances. A subsequent offence was taken into account only for the purpose of assessing the likelihood of reoffending, not as an aggravating feature at sentence. The judge found special circumstances existed, justifying a variation in the ratio between the non-parole period and the balance of term for the principal count.

Totality. Applying Pearce v The Queen, the judge fixed individual sentences for each offence and then considered their relationship. Although the indecent assault and the attempted sexual assault were closely connected, they were discrete offences. The judge partially accumulated the sentences by four months to reflect that the indecent assault increased the overall criminality.

Orders Made

  • Count 3 (indecent assault): Convicted and sentenced to 1 year imprisonment commencing 28 October 2017, expiring 27 October 2018. No non-parole period fixed.
  • Count 2 (attempted sexual intercourse without consent): Convicted and sentenced to a non-parole period of 2 years and 6 months commencing 28 February 2018, expiring 27 August 2020, with a balance of term of 2 years and 6 months expiring 27 February 2023.
  • Total sentence: 5 years and 4 months imprisonment with a non-parole period of 2 years and 10 months, commencing 28 October 2017.
  • Eligible for release to parole on 27 August 2020, subject to the Parole Authority.

Key Takeaways

  • Under the combined operation of s 61I and s 61P of the Crimes Act 1900, an offender convicted of attempted sexual intercourse without consent faces the same maximum penalty as for the completed offence. However, following DAC v R, no standard non-parole period applies to that attempt offence, because the SNPP Table was not intended to capture attempt offences other than the specific forms of attempted murder expressly listed.
  • The District Court confirmed that the absence of a SNPP does not remove the obligation to assess and state the objective seriousness of the offending. Where the SNPP framework provides a useful reference point, a sentencing court may still use that terminology to describe the gravity of the conduct.
  • A psychological report that conflicts with an offender's own evidence of denial at trial may be given reduced weight, though it need not be entirely disregarded when assessing mental condition in mitigation.
  • Subsequent offences committed after the index offences may be considered at sentence for the limited purpose of assessing the likelihood of reoffending, but not as an aggravating feature in their own right.
  • Applying Pearce v The Queen, two offences arising from closely connected conduct remain discrete for sentencing purposes. Where one offence increases the overall criminality, partial accumulation of sentences is appropriate to reflect that fact without producing a disproportionate total.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J, 61L, 61P, 27, 28, 29, 30
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, ss 54A, 54B, 54C, 54D and the Table thereto

Cases
- DAC v R (NSWCCA, 2006)
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Engert (1995) 84 A Crim R 67
- Hanney [2014] NSWDC 13
- Kearsley [2017] NSWCCA 28
- Pearce v The Queen (1998) 194 CLR 610