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District Court 18 May 2018

Regina v RP

[2018] NSWDC 125

Sexual offences
SENTENCE ONEROUS BAIL CONDITIONS PRE SENTENCE CUSTODY

Citation: Regina v RP [2018] NSWDC 125
Court: District Court of New South Wales
Date: 18 May 2018
Judge: His Honour Judge G Lerve

Background

The offender, identified only as RP (the same person the subject of the High Court decision in RP v The Queen [2016] HCA 53), pleaded guilty to three counts on indictment. Two counts related to sexual offending against his half-brother in 2007, when the offender was 14 years old. The third count related to an attempted sexual assault of another half-brother in 2012, when the offender was 19.

Because the first two offences were not reported close to the time they were committed, the offender was ultimately dealt with as an adult rather than under the Children (Criminal Proceedings) Act 1987, which would have applied had proceedings been commenced promptly. This gap between the age at which the offending occurred and the age at which sentencing took place was a central complicating feature of the proceedings.

A number of other factors influenced the sentencing exercise, including the offender's intellectual functioning, onerous bail conditions imposed during the period leading to sentence, and a significant period of pre-sentence custody.

  • What utilitarian discount should apply to each plea of guilty, particularly where the plea to count 3 resulted from negotiations that also produced a lesser charge?
  • How should the court approach sentencing for counts 1 and 2, given the offender was a juvenile (aged 14) at the time of offending but was being sentenced as an adult?
  • Whether the standard non-parole period applied, given the offender's age at the time of the offences.
  • What weight should be given to pre-sentence custody, onerous bail conditions, and the offender's intellectual functioning in determining the appropriate sentence?
  • Whether a finding of special circumstances was warranted, and if so, to what extent the non-parole period should be reduced.

Decision

Guilty plea discounts: His Honour allowed a 10% utilitarian discount for the pleas of guilty to counts 1 and 2, which were entered when the trial was listed to commence. For count 3, where the plea arose from negotiations that also resulted in the lesser charge being substituted, the Crown argued for 10% only, contending that allowing more would amount to double counting. His Honour rejected that argument, noting that May 2017 was the first opportunity the offender had to plead to count 3, and allowed a 12.5% discount.

Objective seriousness: Count 1 (penile/anal rape) was assessed as slightly below mid-range, being essentially opportunistic and committed against a resisting victim. Count 2 (indecent assault involving kissing and pressing against the clothed victim with verbal expressions of sexual intent) was assessed as well below mid-range but not at the lowest end. Count 3 (attempted penile/anal intercourse, frustrated by the offender's flaccid state) was assessed as slightly below mid-range given the clear attempt to penetrate.

Juvenile offending and the standard non-parole period: His Honour confirmed that the standard non-parole period did not apply to counts 1 and 2 because the offender was under 18 at the time of those offences, pursuant to s 54D(3) of the Crimes (Sentencing Procedure) Act 1999. No standard non-parole period applied to count 3 as it involved an attempt. The court took into account the offender's youth at the time of the 2007 offences as a significant mitigating factor, alongside his intellectual functioning and the onerous conditions he had endured on bail.

Final sentence: His Honour was satisfied that full-time custody was the only appropriate disposition for count 3. Starting from approximately 3.5 years and applying the 12.5% discount for the plea, the total sentence was rounded to 3 years. Taking into account pre-sentence custody already served and the other allowances made, His Honour found the offender had in practical terms already served the non-parole period. Counts 1 and 2, reflecting the juvenile age of the offender at the time, were resolved by good behaviour bonds rather than custodial sentences.

Orders Made

  • Count 1: Convicted; released on a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 for 5 years, with conditions including supervision by the Department of Community Corrections and participation in a sex offender's programme.
  • Count 2: Convicted; released on a good behaviour bond under s 9 for 2 years, on the same conditions as count 1.
  • Count 3: Convicted; sentenced to a non-parole period of 1 year and 9 months commencing 18 August 2016 and expiring 17 May 2018, followed by a balance of term on parole of 15 months expiring 17 August 2019, subject to a statutory parole order with a condition to participate in a sex offender's programme.
  • The non-parole period represented approximately 58% of the total sentence, reflecting a substantial finding of special circumstances.
  • The offender was directed to report to the Wagga Wagga office of the Department of Community Corrections by 4pm on Monday 21 May 2018.

Key Takeaways

  • Where a plea of guilty is entered to a charge substituted following negotiations, the sentencing court is not precluded from allowing a discount above 10% for the utilitarian value of the plea, provided there is no actual double counting with benefits already obtained from the charge itself.
  • Under s 54D(3) of the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period does not apply where the offender was under 18 at the time of the offence, even if sentenced as an adult years later.
  • Juvenile age at the time of offending remains a significant mitigating factor even when the offender is sentenced as an adult, particularly where proceedings could not have been brought under the Children (Criminal Proceedings) Act 1987 due to the delay in reporting.
  • Onerous bail conditions and pre-sentence custody are recognised factors in the sentencing calculus and can, in combination with other mitigating circumstances, reduce the effective further time to be served.
  • A substantial departure from the standard non-parole period ratio (here, approximately 58% rather than 75%) may be justified where special circumstances are found, including the offender's intellectual functioning, the need for supervision on parole, and the circumstances of the pre-sentence period.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 66D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A(2), 54D(3)

Cases:
- RP v The Queen [2016] HCA 53
- Bugmy v The Queen [2013] HCA 37
- Hili & Jones v The Queen [2010] HCA 45
- R v AA [2017] NSWCCA 84
- R v Anderson [2012] NSWCCA 175
- Brown v R [2014] NSWCCA 215
- Butters v R [2010] NSWCCA 1
- TC v R [2016] NSWCCA 3
- R v Donald [2013] NSWCCA 238
- Hampton v R [2014] NSWCCA 131
- Hamilton v R [2016] NSWCCA 59
- Kelly v R [2018] NSWCCA 44
- Kennedy v R [2010] NSWCCA 260
- Little v R [2018] NSWCCA 63
- Locke v R (2010) 207 A Crim R 34
- Refaieh v R [2018] NSWCCA 72
- BP v R [2010] NSWCCA 159
- SHR v R [2014] NSWCCA 94
- R v Simpson (2001) 53 NSWLR 704
- R v Niass (unrep, NSWCCA,