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District Court 15 June 2018

R v MD

[2018] NSWDC 156

Sexual offences
CHILD SEXUAL ASSAULT TWO VICTIMS AND MULTIPLE CHARGES YOUNG OFFENDER AGGREGATE SENTENCE

Citation: R v MD [2018] NSWDC 156
Court: District Court of New South Wales
Date: 15 June 2018
Judge(s): Mahony SC DCJ

Background

The offender, a young man who was 18 years old at the time of the first offences, pleaded guilty to eight counts of child sexual assault involving two separate victims. The offences occurred between July and August 2016 in the Mid-North Coast region of New South Wales. The offender had met both victims through mutual social networks and used Facebook messenger, in one case under a pseudonym, as his primary means of contact.

The first victim, aged 14, was subjected to four counts of sexual intercourse with a child aged between 14 and 16 years. The offending included instances where the victim expressly told the offender she did not want to have sex. The second victim, aged 13 at the time, was subjected to indecent assault and three counts of sexual intercourse with a child under 14 years, as well as additional conduct recorded on Form 1.

The offender was arrested in September 2016 in relation to the first victim, released on bail, and then arrested again in November 2016 after offences against the second victim came to light. He had been in custody since 24 November 2016. Critically, the offending occurred while he was already subject to a bond imposed under the Children (Criminal Proceedings) Act 1987 for earlier offences involving child sexual intercourse and child abuse material.

  • What aggregate sentence was appropriate for eight counts of child sexual assault involving two victims, taking into account the principles of totality and proportionality?
  • What weight should be given to the offender's youth and status as a young offender under the Children (Criminal Proceedings) Act 1987?
  • How should the court treat the aggravating circumstance that the offences were committed while the offender was on a conditional bond for prior, similar offending?
  • What discount, if any, was warranted for the guilty pleas entered on the first day of the scheduled trial?

Decision

Mahony SC DCJ sentenced the offender to an aggregate term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 6 months, commencing 24 November 2016. The court found that, despite the offender's youth, the serious and sustained nature of the criminality left no alternative to a custodial sentence.

The court treated the offending against the second victim as particularly grave, given she was under 14 years of age and had been approached by the offender using nude photographs of her as a means of contact. The offender had also attempted to obstruct the investigation by contacting the second victim before police interviewed her and by passing his phone to his sister upon arrest.

The offences were committed in breach of an existing bond for similar offending, which the court identified as a significant aggravating factor. The guilty pleas, entered on the first day of the trial rather than at an early opportunity, attracted only a limited discount. The court certified the Form 1 matters and took into account a victim impact statement when arriving at the aggregate sentence.

The court applied principles from the Court of Criminal Appeal regarding totality and proportionality in multi-count sentencing, balancing the cumulative seriousness of the conduct against the need to ensure the overall sentence reflected the offender's circumstances as a young person.

Orders Made

  • The offender was convicted on Counts 2, 4, 5, and 6 (sexual intercourse with a child aged 14 to 16 years, contrary to s 66C(3) of the Crimes Act 1900).
  • The offender was convicted on Count 8 (indecent assault of a child under 16 years, contrary to s 61M(2) of the Crimes Act 1900).
  • The offender was convicted on Counts 11, 13, and 15 (sexual intercourse with a child under 14 years, contrary to s 66C(1) of the Crimes Act 1900).
  • An aggregate non-parole period of 2 years and 6 months was imposed, commencing 24 November 2016 and terminating 23 May 2019.
  • The balance of the sentence (2 years) was set to run from 24 May 2019 to 23 May 2021.
  • Form 1 matters (Counts 7 and 9) were certified and taken into account.
  • The victim impact statement was taken into account.
  • Release to parole was noted as subject to the determination of the State Parole Authority, with stringent conditions to apply.

Key Takeaways

  • Offending while subject to a conditional bond for prior, similar conduct is a significant aggravating factor in child sexual assault sentencing, capable of limiting the weight given to an offender's youth.
  • An aggregate sentence of 4 years and 6 months with a non-parole period of 2 years and 6 months was imposed where a young adult offender pleaded guilty to eight counts of child sexual assault involving two victims and serious circumstances of breach of trust and coercion.
  • Guilty pleas entered on the first day of a scheduled trial, rather than at an early opportunity, attracted only a reduced discount compared with early pleas.
  • Under the Children (Criminal Proceedings) Act 1987, the court retained the option of imposing a custodial sentence on a young offender where the gravity of the criminality left no appropriate alternative.
  • Where multiple counts involve separate victims and distinct episodes of offending, the principles of totality and proportionality require the court to craft an aggregate sentence that reflects the full scope of the criminality without producing a crushing outcome disproportionate to the offender's circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(1), 66C(3)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 33(1)(a)(ii), 33(1B)

Cases:
- Berryman v R [2017] NSWCCA 297
- GW v R [2018] NSWCCA 79
- JM v R [2014] NSWCCA 297
- O'Brien v R [2013] NSWCCA 197
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Nelson [2016] NSWCCA 130
- R v Van Ryn [2016] NSWCCA 1