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Local Court 20 March 2018

R v SMP

[2018] NSWLC 2

Sexual offencesAssault & violence
CRIMINAL LAW SENTENCING ASSAULT WITH AN ACT OF INDECENCY HISTORICAL OFFENCES OFFENDER JUVENILE AT TIME OFFENDING COMMITTED IN VICTIM'S HOME

Citation: R v SMP [2018] NSWLC 2
Court: Local Court of New South Wales
Date: 20 March 2018
Judge(s): Judge Graeme Henson AM, Chief Magistrate

Background

The defendant (referred to as SMP) was sentenced in the Local Court on three counts of assault with an act of indecency under section 61E(1) of the Crimes Act 1900 (NSW). The offences were committed in 1984 and 1985, when the defendant was aged 16 and 17. The victim was his step-sister, who was aged 12 and 13 at the relevant times and living in the same home.

The offending involved digital penetration and a further act of indecency committed within the victim's home. The conduct was not reported to police until 2016, more than 30 years after it occurred. Original charges were laid in 2016, but substituted charges were not instituted until July 2017 after the prosecution identified that the original charges were not legally available for the conduct alleged at the time it occurred.

The defendant initially pleaded not guilty to the substituted charges and entered guilty pleas only on the day listed for hearing. Two charges proceeded to sentence, and a third was placed on a Form 1 (taken into account but not separately punished).

  • What sentencing framework and penalty range applied to offences committed by a juvenile in 1984 and 1985, including the relevance of the now-repealed Child Welfare Act 1939 (NSW)?
  • What discount applied for the utilitarian value of a guilty plea entered on the day of hearing rather than at the first available opportunity?
  • Whether the offences were aggravated by substantial emotional harm to the victim and by being committed in the victim's home?
  • Whether, given the defendant's personal circumstances, prospects of rehabilitation, and the significant delay since offending, a suspended sentence was appropriate rather than full-time imprisonment?

Decision

Sentencing framework and the juvenile offender issue. The court acknowledged that had these offences been prosecuted promptly in 1984 and 1985, they would have been dealt with under the Child Welfare Act 1939 (NSW), the procedural and sentencing regime applicable to juveniles at that time. However, the court noted that any assumption that the matter would necessarily have been resolved in a children's jurisdiction was mistaken and at odds with current authority. The sentencing court was required to approach the exercise by reference to the penalties and sentencing patterns that existed at the time of offending, with the maximum penalty for each offence being six years imprisonment.

Guilty plea discount. The court allowed a 15% discount for the utilitarian value of the guilty pleas, consistent with the principles in R v Thomson; R v Houlton (2000) and R v Borkowski [2009]. The pleas were not entered at the first available opportunity, having been preceded by not guilty pleas to the substituted charges and listed for a contested two-day hearing.

Aggravating factors. The court found two aggravating factors established. First, under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the victim had suffered substantial emotional harm, supported by a victim impact statement tendered without objection. The victim continued to suffer severe post-traumatic stress disorder some 34 years after the offending. Second, under section 21A(2)(eb), the offences were committed in the victim's own home, violating her reasonable expectation of safety and security there.

Sentence. The court assessed the offending as towards the upper level of objective seriousness for offences in this category. Mitigating factors included the defendant's prior good character, low risk of reoffending, good prospects of rehabilitation, and the significant passage of time since the offending ceased. Weighing the purposes of sentencing, including denunciation and retribution, against the defendant's personal circumstances (including three young children), the court imposed sentences of imprisonment suspended on condition the defendant enter into bonds, with a requirement to undertake a psycho-educational counselling program directed by a forensic psychologist.

Orders Made

  • Sentences of imprisonment imposed on each of the two charges, suspended on condition the defendant enters a good behaviour bond for the duration of each sentence.
  • Each bond includes supervision and direction by a Community Corrections Officer, including participation in psycho-educational counselling and any other programs required by the supervising officer.
  • The defendant was required to report to the Community Corrections Office at Dee Why within 48 hours of entering the bonds.
  • The defendant was ordered to be registered as a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW).

Key Takeaways

  • The sentencing court is required to approach historical sexual offending by reference to the penalties and prevailing sentencing patterns that existed at the time of the offences, not the current sentencing regime.
  • Any assumption that offences committed by a juvenile in the 1980s would necessarily have been dealt with in a children's jurisdiction was identified by the court as mistaken and inconsistent with current authority from the NSW Court of Criminal Appeal.
  • Under section 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW), committing an offence in the victim's home constitutes an aggravating factor even where the offender and victim share that home, because it violates the victim's reasonable expectation of safety and security.
  • A victim impact statement tendered without objection by the defence can support a finding of substantial emotional harm under section 21A(2)(g), consistent with the approach in Wilmot v R (2007).
  • Significant delay between the commission of historical offences and sentencing, combined with demonstrated rehabilitation and cessation of offending, can reduce (though not eliminate) the weight given to general deterrence as a sentencing purpose.

Legislation and Cases Referenced

Legislation
- Child Welfare Act 1939 (NSW) (repealed)
- Crimes Act 1900 (NSW), s 61E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 5, 10, 21A(2)(eb), 21A(2)(g), 21A(2)(l), 27(3)(d), 32
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases
- Jonson v R [2016] NSWCCA 286
- MC v R [2017] NSWCCA 316
- PH v R [2009] NSWCCA 161
- PWB v R [2011] NSWCCA 84
- R v Borkowski [2009] NSWCCA 102
- R v Doan (2000) 50 NSWLR 115
- R v JCW [2000] NSWCCA 209
- R v Lulham [2016] NSWCCA 287
- R v Mailes (2003) 142 A Crim R 353
- R v Nelson [2016] NSWCCA 130
- R v Taylor [2000] NSWCCA 442
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Ware (unreported, NSWCCA, 9 July 1997)
- R v Zamagias [2002] NSWCCA 17
- TC v R [2016] NSWCCA 3
- Wilmot v R (2007) 169 A Crim R 280