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District Court 6 December 2018

R v Malloy

[2018] NSWDC 477

Sexual offences
CRIMINAL SENTENCE “REPRESENTATIVE COUNT” SEXUAL INTERCOURSE PERSON 10 & UNDER 16, UNDER AUTHORITY OFFENDER VICTIM’S STEPFATHER

Citation: R v Malloy [2018] NSWDC 477
Court: District Court of New South Wales
Date: 6 December 2018
Judge: King SC DCJ

Background

The offender was the long-term de facto partner of the complainant's mother and had effectively assumed a paternal role in the household from the time the complainant was five years old. The offending occurred in Coffs Harbour when the complainant was between 10 and 12 years of age, during afternoon periods when the offender was at home and the complainant's mother was at work.

The offender faced two counts on the indictment. The first count charged sexual intercourse with a child aged between 10 and 16 in circumstances of aggravation, namely that the complainant was under his authority (s 66C(2), Crimes Act 1900). The second count charged an act of indecency toward a child under 16 under authority (s 61O(1), Crimes Act 1900), framed as a representative count covering approximately 20 occasions of deliberate exposure over about one year. Three additional charges of indecent assault (s 61M(1)) were placed on a Form 1, meaning the court took them into account when sentencing on the first count without recording separate convictions.

The facts were agreed. The offending ranged from digital penetration and manual stimulation to repeated acts of indecent exposure. A pretext phone call in 2015, arranged by police, captured the offender apologising to the complainant and acknowledging the harm caused, though he later denied physical contact in his formal police interview.

  • What discount from sentence was appropriate for the guilty pleas, given the differing circumstances of each plea?
  • How should the court treat the representative count (Count 2) for sentencing purposes?
  • What weight should be given to subjective factors, including the offender's age, health, and prospects for rehabilitation?
  • Whether the statutory relationship between the non-parole period and balance of term warranted variation, and on what basis.
  • What aggregate sentence properly reflected the objective seriousness of the offending, general and specific deterrence, and the offender's subjective circumstances?

Decision

The court applied different plea discounts to the two counts. For Count 2, the offender had admitted the indecent exposure conduct from the outset of his police interview, and the plea therefore attracted a 25% discount for utility, consistent with the principles in Thomson and Houlton. For Count 1 and the Form 1 matters, pleas were entered only on 17 September 2018, after the matter had been listed for trial on three separate occasions and after Voir Dire proceedings had commenced. The court found there was some utility in those late pleas but that the prolonged stress to the complainant weighed heavily against a generous discount. A 10% discount applied to those matters.

The court treated the objective seriousness of the offending as substantial. The offender was in a position of trust and authority over the complainant, having functioned as her stepfather throughout her childhood. The offending occurred in the family home, exploiting regular periods of unsupervised access. The Victim Impact Statement described lasting psychological harm, including the need for ongoing counselling, and the court gave it appropriate weight.

In assessing subjective matters, the court noted the offender's age, health issues, and the hardship that full-time imprisonment would represent for him. However, it found that specific and general deterrence were paramount, referencing the findings of the Royal Commission into child abuse. The court concluded that the s 5 threshold under the Crimes (Sentencing Procedure) Act had clearly been crossed and that a significant term of full-time imprisonment was the only appropriate response.

The court proceeded by way of an aggregate sentence, providing indicative sentences for each offence. The non-parole period was set at three years out of a total sentence of five years and six months. Critically, the court varied the usual statutory ratio between the non-parole period and the balance of term, extending the balance of term to two years and six months on account of the offender's age, to allow a longer supervised period upon release to assist rehabilitation.

Orders Made

  • Conviction recorded for both offences.
  • Aggregate sentence of five years and six months imprisonment imposed.
  • Non-parole period of three years, commencing 30 January 2018 (to account for 310 days of pre-sentence custody).
  • Non-parole period to expire 29 January 2021.
  • Balance of term of two years and six months, with the total sentence expiring 29 July 2023.
  • Indicative sentence for Count 1 (s 66C(2), including Form 1 matters): five years imprisonment.
  • Indicative sentence for Count 2 (s 61O(1)): two years imprisonment.

Key Takeaways

  • Different plea discounts can apply to different counts on the same indictment where the timing and circumstances of each plea differ materially. A plea made from the outset of a police interview attracted 25%, while belated pleas entered after multiple trial listings and the commencement of a Voir Dire attracted only 10%.

  • A "representative count" covering multiple instances of the same conduct is a legitimate vehicle for sentencing, but the court must identify and apply the appropriate discount carefully, particularly where the offender's acknowledgement of that conduct came early and was consistent.

  • Under s 61O(1) and s 66C(2) of the Crimes Act 1900, the circumstance of aggravation that the victim was under the authority of the offender is treated as a distinct and serious aggravating feature, particularly where the relationship was a long-term quasi-parental one established over the complainant's entire childhood.

  • The District Court confirmed that the statutory relationship between a non-parole period and the balance of term can be varied where the offender's age and rehabilitation prospects justify a longer supervisory period after release.

  • Sufficient basis existed to impose a significant aggregate custodial sentence even where the offender had no prior criminal history and presented some positive subjective features, given the gravity of the offending, the breach of trust involved, and the paramount importance of general and specific deterrence in child sexual abuse matters.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61O(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 32

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309 (discount for guilty plea, utility principle)