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District Court 9 October 2018

R v LV

[2018] NSWDC 530

Sexual offences

Citation: R v LV [2018] NSWDC 530
Court: District Court of New South Wales
Date: 9 October 2018
Judge(s): Bennett SC DCJ

Background

The offender, identified only as LV, pleaded guilty in the Local Court to six counts of indecent assault under s 81 of the Crimes Act 1900. The offences were committed between 1 March 1972 and 31 July 1973, making them historical offences committed over 45 years before sentencing. The maximum penalty for each offence at the time was five years' imprisonment.

The victims were two brothers, referred to as V and F, who were young boys at the time of the offending. The offender was a family friend who had begun a relationship with the victims' older sister, which gave him regular access to the family home. The offending included acts of fellatio and manual sexual stimulation committed against the children, often in the family bedroom at night.

At the time of sentencing, the offender had spent no time in custody. The court noted that much had occurred in his life in the decades since the offending, including his own history as a victim of sexual assault by a Catholic priest.

  • Whether current sentencing patterns and practices applied, or those in place at the time of the offences in the early 1970s
  • How additional offences listed on a Form 1 (in New South Wales, a document listing further offences an offender asks to have taken into account at sentencing) should affect the sentences imposed for the principal offences
  • The appropriate discount for guilty pleas
  • Whether an Intensive Correction Order (ICO), which is a community-based custodial sentence served under supervision rather than in full-time detention, was an appropriate sentencing option

Decision

The court confirmed that, by operation of s 25AA of the Crimes (Sentencing Procedure) Act 1999, the relevant sentencing benchmark for child sexual offences is the standard prevailing at the time of sentencing, not at the time of the historical offences. The court was also required to have regard to current understanding of the trauma of sexual abuse on children, including recent psychological research and the common experience of courts. This represented a statutory departure from the general rule that historical offences are sentenced by reference to the standards of the time.

On the Form 1 matters, the court accepted a total of twelve additional offences to be taken into account: eleven against victim V and one against victim F. Following the principles discussed in Attorney General's Application No. 1 of 2002, the court increased the sentences for the principal offences to reflect the additional criminality. The court acknowledged that by proceeding this way the offender avoided separate punishment for those additional offences, and credited him with the utility that provided to the sentencing process.

The offender received a 25 per cent discount on each sentence for his guilty pleas, consistent with the Court of Criminal Appeal's approach in Borkowski. The court was satisfied that the offender had demonstrated genuine contrition and remorse, noting that he had disclosed the offending to his wife before authorities became aware of it and had taken steps to address the psychological consequences of his own victimisation.

The court imposed an aggregate sentence of three years' imprisonment, to be served by way of an Intensive Correction Order. The Crown conceded that an ICO was within the available sentencing range for these circumstances. The court declined to impose home detention, electronic monitoring, a curfew, or community service, but required the offender to participate in any rehabilitation or treatment programme identified by Community Corrections, and to report to the Community Corrections Office at Penrith within seven days.

Orders Made

  • Aggregate sentence of three years' imprisonment, imposed as an Intensive Correction Order commencing 9 October 2018
  • Standard conditions applied under s 73(1) of the Crimes (Sentencing Procedure) Act 1999: the offender must not commit any offence and must submit to supervision by a Community Corrections officer
  • Additional condition under s 73A(2)(e): participation in any rehabilitation or treatment programme identified by Community Corrections
  • No home detention, electronic monitoring, curfew, or community service imposed
  • Offender directed to attend the Community Corrections Office at Penrith within seven days
  • Exhibits retained on file for 28 days or such longer period as required

Key Takeaways

  • Under s 25AA of the Crimes (Sentencing Procedure) Act 1999, sentencing for child sexual offences must reflect current sentencing patterns and the contemporary understanding of the trauma caused by sexual abuse, even where the offences were committed decades earlier.
  • A Form 1 procedure, where an offender asks a court to take into account additional uncharged or unsentenced offences, increases the sentence for the principal offence to reflect the broader pattern of misconduct, but spares the offender from separate punishment for those additional matters.
  • The District Court applied a 25 per cent guilty plea discount in accordance with Borkowski, treating demonstrated remorse, voluntary disclosure before detection, and rehabilitative steps as relevant subjective factors in synthesis with the plea itself.
  • An Intensive Correction Order remained available as a sentencing option for serious historical child sexual offences in appropriate circumstances, including where the offender's age and health bore on the practicality of particular conditions.
  • No standard non-parole period applied because the relevant legislative provisions were not in force at the time of the offences, illustrating the care required when sentencing for offences committed under long-repealed legislation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 81 (indecent assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25AA, 73(1), 73A(2)

Cases
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 (principles governing Form 1 additional offences)
- Borkowski [2006] NSWCCA 102 (guilty plea discount)