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District Court 15 March 2018

R v David FORD

[2018] NSWDC 183

Sexual offences
CRIMINAL SENTENCE COMMITTED FOR TRIAL LATE GUILTY PLEA 18 COUNTS HISTORICAL CHILD SEXUAL ASSAULT

Citation: R v David Ford [2018] NSWDC 183
Court: District Court of New South Wales
Date: 15 March 2018
Judge(s): Tupman DCJ

Background

The offender appeared for sentence on 18 counts of historical child sexual assault spanning approximately a decade, from 1986 to 1998. The offences involved five complainants, all minors at the time, and ranged in seriousness from indecent assault to sexual intercourse with a person aged between 10 and 16. All offences occurred in or around Cooma.

The matters proceeded to two separate trials in the Queanbeyan District Court. In the first trial, involving four male complainants, the offender pleaded guilty on day three after two complainants had already given evidence. In the second trial, involving a female complainant, he pleaded guilty after her evidence had been completed and a retrial had commenced, following legal complications arising from changes in legislation over the relevant date range.

The offender had no prior criminal record. He was on bail with strict conditions for much of the period following his arrest and had spent only five days in pre-sentence custody. The sentencing proceeding addressed significant personal circumstances, including a range of medical conditions and prospects of rehabilitation.

  • What discount, if any, was warranted for late guilty pleas entered during two separate trials?
  • How should the objective seriousness of the offences be assessed, particularly the aggravated indecent assault counts?
  • What weight should be given to the offender's age, medical condition, and lack of criminal history in determining the sentence structure?
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act to justify varying the standard non-parole period ratio.
  • How sentences for multiple counts across two indictments, involving offences committed over many years under different legislative regimes, should be structured and accumulated.

Decision

Tupman DCJ characterised the aggravated indecent assault offences as sitting at the mid-range of objective seriousness. The more serious counts, including the aggravated attempted sexual intercourse (Count 12) and sexual intercourse with a minor (Count 15), were treated as the gravest matters and anchored the sentencing structure.

On the question of discount for the guilty pleas, her Honour accepted that some utilitarian value existed despite the lateness of both pleas. Two of the five complainants had already given evidence before the first plea was entered, and the female complainant had completed her evidence before the second. Nevertheless, the avoidance of further trial time, the public acknowledgement of guilt, and the likely benefit to the victims' healing were all accepted as carrying some weight. The discount applied was approximately 10 percent, well below the maximum of 25 percent.

Her Honour found special circumstances for Count 12 (the most serious count) on two bases: partial accumulation across multiple sentences, and the likelihood that imprisonment would be served more onerously given the offender's age and medical condition. This justified a departure from the standard non-parole period ratio for that count.

The sentences were structured to produce an overall non-parole period of five years and a total term of eight years. Her Honour acknowledged some artificiality in the sentence dates required to achieve this structure and noted that an aggregate sentence would have been preferable but was unavailable because of the age of the offences.

Orders Made

  • Count 1 (indecent assault, AR): fixed term
  • Counts 2 and 3 (aggravated indecent assault, GM): fixed terms
  • Counts 4, 5, 6, 7, 8, 9, 10, 11, 13 and 14 (aggravated indecent assault, GJ): fixed terms of 18 months each, commencing 2 March 2021, expiring 1 September 2022
  • Count 4 (separate indictment, AJ): fixed term of 12 months commencing 2 March 2021, expiring 1 March 2022
  • Count 12 (aggravated attempted sexual intercourse without consent, GJ): non-parole period of 2 years commencing 2 March 2021, expiring 1 March 2023; parole period of 3 years commencing 2 March 2023, expiring 1 March 2026; total term of 5 years
  • Count 15 (sexual intercourse with a person aged 10 to 16, GJ): fixed term of 18 months commencing 2 December 2020, expiring 1 June 2022
  • Overall structure: earliest release to parole 1 March 2023; parole expiring 1 March 2026
  • Section 166 certificate assault (backup charge): dismissed
  • Recommendation made for immediate medical assessment and treatment upon the offender's return to custody

Key Takeaways

  • A late guilty plea can still attract a sentencing discount, even when entered mid-trial or after complainants have given evidence, where there is some identifiable utilitarian value, including avoidance of further trial time and the public acknowledgment of guilt. The District Court applied a discount of approximately 10 percent in these circumstances, substantially below the 25 percent maximum.

  • Where an offender's guilty plea spares a vulnerable complainant from having to give evidence in full, that benefit to the victim forms part of the utilitarian value recognised in the discount, even if the complainant had already given some evidence.

  • Special circumstances under the Crimes (Sentencing Procedure) Act can be established on the combined basis of partial accumulation and the heightened impact of imprisonment on an offender with significant medical conditions and advancing age.

  • Structuring sentences across multiple counts spanning different legislative regimes and a period of over a decade requires significant care. The District Court noted that an aggregate sentence would have been the preferable mechanism but was unavailable given the historical dates of the offences.

  • Under the applicable legislative framework at the time of the offences, maximum penalties varied significantly by offence type: indecent assault under s 61E attracted a maximum of four years, aggravated indecent assault under s 61M(1) attracted seven years, sexual intercourse with a person aged 10 to 16 under s 66C(1) attracted eight years, and aggravated attempted sexual intercourse under s 61J carried a maximum of 20 years.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61E, 61J, 61M(1), 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 21A(5A)

Cases
- PWB v R [2011] NSWCCA 84