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District Court 13 February 2018

R v Palmer

[2018] NSWDC 50

Sexual offences
CRIMINAL LAW SENTENCE OBJECTIVE SERIOUSNESS VICTIM IMPACT STATEMENT DE SIMONI PRINCIPLE SENTENCING MITIGATING FACTORS

Citation: R v Palmer [2018] NSWDC 50
Court: District Court of New South Wales
Date: 13 February 2018
Judge: Hatzistergos DCJ

Background

The offender was the property manager of a home rented by the complainant, a single mother, from approximately 2000. Over time their relationship developed beyond a professional one, involving conversations of a sexual nature and some physical contact. The offender also assisted the complainant in practical ways, including facilitating a car purchase.

In September 2015, the offender took the complainant to breakfast and then to a residential property he was renovating at Seven Hills. Events at that property gave rise to three charges: two counts of indecent assault and one count of sexual intercourse without consent, all under the Crimes Act 1900 (NSW).

At trial in October 2017, the jury acquitted the offender on both indecent assault counts but convicted him of sexual intercourse without consent contrary to section 61I. The remarks on sentence were delivered on 13 February 2018.

  • What facts could the sentencing court find consistently with the jury's guilty verdict on Count 2, given the acquittals on Counts 1 and 3, and what constraints did the principle in R v De Simoni (1981) 147 CLR 383 impose?
  • How should the objective seriousness of the offence be assessed for sentencing purposes?
  • What weight should be given to mitigating factors, including the offender's good character, lack of prior convictions, positive prospects of rehabilitation, and a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood?
  • Were special circumstances established within the meaning of section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to justify departing from the standard non-parole period ratio?
  • What weight should be given to sentencing statistics in this case?

Decision

Fact-finding after mixed verdicts. The defence argued the court could only act on the bare elements of the offence as described in the complainant's Facebook message to a friend, given the acquittals on the other counts. His Honour rejected this, applying the Court of Criminal Appeal's reasoning in Artery v R [2017] NSWCCA 259: an acquittal does not necessarily mean the jury disbelieved the complainant, and different verdicts on different counts carry no implication of inconsistency. The court nonetheless approached the fact-finding process with caution, consistent with the De Simoni principle that an offender must not be sentenced for conduct constituting a more serious offence or for offences of which they were not convicted.

Objective seriousness. His Honour assessed the objective seriousness of the offence. The court also noted the complainant's victim impact statement and took into account the harm caused to her.

Subjective factors. The court accepted several mitigating factors in favour of the offender. These included his good character, the absence of any prior criminal record, positive character references, good prospects of rehabilitation, and a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood. Sentencing statistics were treated as of limited utility, consistent with established authority, given the small sample sizes available.

Special circumstances and sentence. The court found special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), justifying a non-parole period that departed from the standard one-third balance of term. This reflected the offender's need for supervision and support on parole, given his subjective circumstances. A total sentence of three years was imposed, with a non-parole period of eighteen months.

Orders Made

  • The offender was convicted on Count 2 (sexual intercourse without consent, contrary to section 61I of the Crimes Act 1900 (NSW)) and sentenced to three years imprisonment, commencing 13 February 2018 and expiring 12 February 2021.
  • A non-parole period of eighteen months was set, commencing 13 February 2018 and expiring 12 August 2019.
  • The balance of term was set at eighteen months, expiring 12 February 2021.
  • The offender was directed to be released at the expiration of the non-parole period to serve the remainder of the sentence on parole.
  • Earliest release date: 12 August 2019.

Key Takeaways

  • A sentencing court is not confined to finding only the bare elements of an offence simply because the jury acquitted on related counts. As the District Court applied from Artery v R, an acquittal does not compel an inference that the complainant was disbelieved.
  • The De Simoni principle operates as a constraint at sentencing: a court may not take into account conduct that would support a conviction for a more serious offence, nor may it sentence an offender for charges on which they were acquitted.
  • Sentencing statistics were treated as being of limited utility where the available sample sizes were small, consistent with Court of Criminal Appeal authority.
  • Good character, absence of prior convictions, positive rehabilitation prospects, and a diagnosed mental health condition (here, Adjustment Disorder with mixed anxiety and depressed mood) are capable of operating as mitigating factors at sentence, even in cases involving serious sexual offending.
  • Special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) justified a non-parole period of eighteen months out of a total term of three years, reflecting the court's assessment of the offender's need for structured supervision during the parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 66L
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 12, 16, 21A, 28, 44(2), 50(1)

Cases
- R v De Simoni (1981) 147 CLR 383
- Artery v R [2017] NSWCCA 259
- R v Hibberd [2009] NSWCCA 20
- Baines v R [2016] NSWCCA 132
- R v Hartikainen (unreported, NSWCCA, 8 June 1993)
- R v Qin [2008] NSWCCA 189
- Salmond v R [2010] NSWCCA 141
- Jiang v R [2010] NSWCCA 277
- MC v R [2017] NSWCCA 316