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District Court 15 February 2018

R v Michael Jon Park

[2018] NSWDC 17

Sexual offences

Citation: R v Michael Jon Park [2018] NSWDC 17
Court: District Court of New South Wales
Date: 15 February 2018
Judge: Haesler SC DCJ

Background

The offender, a young man aged 19 at the time of the first offences, met a 13-year-old girl (referred to by the pseudonym Susan) via Facebook in November 2013. She had represented herself as 15. After meeting in person, the offender committed multiple acts of digital penetration and indecent touching against her at his home. Susan did not come forward to police until April 2017.

The offender later created a fictitious Facebook profile and, in July 2016, used it to contact a second 13-year-old girl (referred to as Alice). He obtained a photograph of her breasts under that false identity, then used that image to coerce her into meeting him in his car, where he touched her breasts and vaginal area without consent.

The offender was arrested in October 2016 and has been in custody since that date. He entered guilty pleas in the Local Court and was committed to the District Court for sentence on five offences arising from the conduct against both victims.

  • How to assess the objective seriousness of each offence, including where the applicable standard non-parole period presents structural anomalies
  • Whether the offender's diagnosed Autism Spectrum Disorder and associated low emotional maturity could be taken into account in giving content to the standard non-parole period
  • Whether a staged sentencing approach was permissible under the framework established in Muldrock v The Queen
  • How Form 1 matters (additional offences taken into account) should be incorporated into the overall sentence without double counting
  • What discount applied for the utilitarian value of the early guilty pleas
  • How to arrive at a just aggregate sentence, having regard to accumulation, concurrency, and totality

Decision

Haesler SC DCJ conducted a detailed assessment of objective seriousness for each offence. For the Susan offences, the acts of digital penetration were relatively brief and no physical injury was reported, though the child's fear and discomfort were accepted. The offender proceeded despite the victim's stated refusals, which elevated the seriousness. For the Alice offences, the use of a false online identity and the coercive use of the breast photograph to compel the meeting were significant aggravating features, even though the physical acts themselves were of shorter duration.

His Honour addressed the structural tension in the standard non-parole period for the s 61M(2) offences (indecent assault, child under 16), which carry a maximum of 10 years and a standard non-parole period of 8 years. Consistent with Court of Criminal Appeal authority in NJK v R, the District Court was required to give effect to that legislatively prescribed period, notwithstanding criticism of the ratio between the maximum and the standard non-parole period as anomalous or "absurd."

The offender's Autism Spectrum Disorder and consequent low emotional maturity were found to have a causal connection to each offence. However, consistent with Muldrock, those matters could not be taken into account in the objective seriousness assessment for the purposes of fixing the standard non-parole period. They were nonetheless relevant in the broader instinctive synthesis of all relevant factors, including personal deterrence and prospects of rehabilitation.

A discount of 25 per cent was applied for the early guilty pleas, recognising both the utilitarian value to the justice system and the particular benefit in sexual offence and child victim cases of avoiding the need for victims to give evidence.

Orders Made

  • Offence 1 (Susan, s 61J(1)): 3 years 9 months imprisonment, indicated non-parole period of 2 years 3 months
  • Offence 2 (Susan, s 61J(1)): 3 years 9 months imprisonment, indicated non-parole period of 2 years 3 months
  • Offence 1 (Alice, s 61M(2)): 3 years imprisonment, indicated non-parole period of 1 year 10 months
  • Offence 2 (Alice, s 61M(2)): 3 years imprisonment, indicated non-parole period of 1 year 10 months
  • Offence 3 (Alice, s 91H(2) on s 166 certificate): 7 months imprisonment
  • Aggregate sentence: 5 years 5 months imprisonment with a non-parole period of 3 years 3 months, commencing 29 October 2016
  • Eligible for parole consideration: 28 January 2020; sentence expires 28 March 2022

Key Takeaways

  • Under Muldrock v The Queen, an offender's personal characteristics, including a diagnosed mental condition such as Autism Spectrum Disorder, cannot inform the objective seriousness assessment for the standard non-parole period, but they remain relevant to the overall instinctive synthesis of all sentencing factors.
  • A staged sentencing approach, beginning from the standard non-parole period and working outward by deduction, is not permissible. The standard non-parole period is one measure among several to be balanced with all other relevant factors.
  • The District Court confirmed that the ratio between the maximum penalty and the standard non-parole period for s 61M(2) offences has been widely criticised as anomalous, but sentencing courts remain bound to give effect to the legislatively prescribed eight-year standard non-parole period.
  • Form 1 matters, taken into account to reflect personal deterrence and retribution, must be carefully integrated into the instinctive synthesis to avoid double counting where they already aggravate the principal offence.
  • Early guilty pleas in sexual offence matters involving child victims attract utilitarian discount partly because they spare victims from having to give evidence, a consideration the Court of Criminal Appeal identified in R v Thompson as a particularly significant benefit in such cases.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 91H(2), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen (2005) 228 CLR 357
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Hoare v The Queen (1989) 167 CLR 348
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- BT v R [2010] NSWCCA 267
- NJK v R [2011] NSWCCA 151
- R v Simpson (2001) 53 NSWLR 704
- R v Gavel [2014] NSWCCA 56
- Wise v R [2006] NSWCCA 264
- R v Cage [2006] NSWCCA 304
- MAK [2006] NSWCCA 381
- DPP v De La Rosa [2010] NSWCCA 194
- Way [2004] NSWCCA 131
- Hearne (2001) 124 A Crim R 451
- Clinch (1994) 72 A Crim R 301
- Clarkson [2011] VSCA 152
- Blackman and Walters [2001] NSWCCA 121