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District Court 12 April 2017

R v AJB

[2017] NSWDC 81

Sexual offences
HISTORICAL SEX OFFENDING AGGREGATE SENTENCE

Citation: R v AJB [2017] NSWDC 81
Court: District Court of New South Wales
Date: 12 April 2017
Judge: Mahony SC DCJ

Background

The offender, a man with no prior criminal history, pleaded guilty to seven counts of historical sexual offending against multiple victims. The offending spanned approximately two decades, from 1981 to 2002, and involved victims aged between 7 and 16 years at the relevant times. Several victims were the offender's nieces; others were neighbourhood children who visited his family home.

The offences ranged in seriousness from acts of indecency to non-consensual sexual intercourse with an 11-year-old child. A number of additional offences were placed before the court on Form 1 (a procedural mechanism allowing a court to take further offences into account at sentencing without recording separate convictions for them). The offender was committed for trial in February 2016 and entered guilty pleas upon arraignment in October 2016.

The sentencing hearing took place on 31 March 2017. The court was required to apply the sentencing law in force at the time each offence was committed, reflecting the well-established principle applicable to historical offences.

  • What sentencing regime applied to each offence, given the offending occurred across multiple legislative periods spanning 1981 to 2002?
  • How should the principles of totality and proportionality operate when imposing an aggregate sentence across seven counts and multiple Form 1 matters?
  • What weight should be given to the guilty plea, the offender's lack of prior criminal history, and other mitigating factors?
  • Whether custodial sentences would have been imposed for the less serious counts (Counts 6 and 7) if they had been sentenced in isolation?

Decision

The court applied the sentencing law in force at the time of each offence, consistent with established authority on historical sexual offending. Each of the seven counts attracted a different maximum penalty depending on the provision of the Crimes Act 1900 in force at the relevant time. Those maxima ranged from 18 months imprisonment (the 2002 act of indecency against a person over 16) to 10 years imprisonment (the 1981 to 1982 sexual intercourse without consent with an 11-year-old).

Mahony SC DCJ rejected a submission made on behalf of the offender that custodial sentences would not have been imposed for Counts 6 and 7 in isolation. The court reasoned that the accumulation of previous offending elevated the seriousness of those counts and would have attracted imprisonment even if considered alone.

Applying the principles of totality and proportionality from Pearce v R (1998) 194 CLR 610, the court imposed a single aggregate sentence. The aggregate reflected the overall criminality of the conduct without creating a crushing or disproportionate outcome. The court also confirmed that the Form 1 matters were properly certified.

Orders Made

  • Count 1: Convicted of committing an act of indecency towards a person under 16 years (s 61E(2), Crimes Act 1900).
  • Count 2: Convicted of sexual intercourse without consent with a person under 16 years (s 61D(1), Crimes Act 1900).
  • Count 3: Convicted of indecent assault on a female person under 16 years (s 61E(1)/s 76, Crimes Act 1900).
  • Count 4: Convicted of an act of indecency towards a person under 16 years (s 61E(2), Crimes Act 1900).
  • Count 5: Convicted of indecent assault on a person under 16 years while under authority (s 61E(2A), Crimes Act 1900).
  • Count 6: Convicted of indecent assault on a person under 16 years while under authority (s 61O(1), Crimes Act 1900).
  • Count 7: Convicted of an act of indecency towards a person over 16 years (s 61N(2), Crimes Act 1900).
  • Sentence: Aggregate term of 4 years imprisonment, comprising a non-parole period of 2 years (commencing 12 April 2017, expiring 11 April 2019) and a balance of term of 2 years (commencing 12 April 2019, expiring 11 April 2021).
  • Release to parole is not automatic and is subject to determination by the State Parole Authority.

Key Takeaways

  • When sentencing for historical sexual offences in NSW, the sentencing court applies the legislative regime in force at the time of each offence, not the law current at the date of sentencing.
  • A Form 1 procedure allows additional offences to be taken into account at sentencing without the court recording separate convictions; the District Court confirmed that the Form 1 matters here were properly certified.
  • Under the totality and proportionality principles from Pearce v R (1998) 194 CLR 610, an aggregate sentence must reflect overall criminality across multiple counts without producing a disproportionately severe outcome.
  • Where an offender has accumulated a pattern of prior sexual offending, that history bears on the seriousness of subsequent offences and can support the imposition of custodial sentences for counts that might otherwise have attracted a non-custodial outcome.
  • An absence of prior criminal history does not, of itself, preclude imprisonment where the nature and volume of the offending otherwise warrants it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 61E(2), 61E(2A), 61N(2), 61O(1), 76
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Parole of Prisoners Act 1966 (NSW)
- Probation and Parole Act 1983 (NSW)
- Sentencing Act 1989 (NSW)

Cases
- Pearce v R (1998) 194 CLR 610
- AJB v R [2007] NSWCCA 51
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518
- CT v R [2017] NSWCCA 15
- Denham v R [2016] NSWCCA 309
- KAB v R [2015] NSWCCA 55
- Le v R [2017] NSWCCA 26
- Magnuson v R [2013] NSWCCA 50
- MPB v R [2013] NSWCCA 213
- R v ABS [2005] NSWCCA 225
- R v AEM [2002] NSWCCA 58
- R v BA [2014] NSWCCA 148
- R v EGC [2005] NSWCCA 392
- R v Gavel [2014] NSWCCA 56
- R v MJR [2002] NSWCCA 129
- R v Moon [2000] NSWCCA 534
- R v Nelson [2016] NSWCCA 130
- R v Roberts [2003] NSWCCA 309
- R v Rosenstrauss [2012] NSWCCA 25
- Wilson v R [2017] NSWCCA 41