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District Court 26 April 2019

R v Hill

[2019] NSWDC 216

Sexual offences

Citation: R v Hill [2019] NSWDC 216
Court: District Court of New South Wales
Date: 26 April 2019
Judge: Bennett SC DCJ

Background

The offender was convicted after trial of one count of aggravated sexual assault under s 61J(1) of the Crimes Act 1900. The charge arose from an incident on 16 October 2017 at Bathurst, where the offender sexually assaulted a fellow inmate by demanding fellatio while pressing a razor blade (stripped of its guard) against the victim's throat.

Critically, the offender was already serving a custodial sentence when he committed the offence. He would have been released to parole on 13 July 2018 but for this conduct. The prior sentence expired on 12 November 2018, after which his continued custody related solely to the present offence.

The offender denied committing the sexual assault throughout, including at sentencing. A psychological report was obtained, which documented his ongoing mental health issues (he was prescribed Seroquel), intellectual limitations, and a background of significant deprivation.

  • What were the objective facts of the offence, in circumstances where the offender denied guilt and offered no evidence in mitigation?
  • Where did the offence fall on the range of objective seriousness, and how did the standard non-parole period of 10 years bear on sentencing?
  • What subjective factors were relevant, including the offender's mental health, intellectual capacity, deprived background, and prior criminal record?
  • How should the sentence commence, given the offender had been continuously in custody serving a prior sentence when the offence occurred?
  • Were there special circumstances justifying a departure from the standard ratio between the non-parole period and the total sentence?

Decision

Objective facts and seriousness: The court found, on the evidence of witnesses at trial, that the offender armed himself with a disposable razor blade and applied it to the victim's neck while demanding sexual compliance. Both the Crown and the defence accepted that the objective seriousness of the offence fell a little below the midrange for offences of this type. Bennett SC DCJ agreed with that assessment. The court noted that all aggravating circumstances were already captured within the elements of the charged offence under s 61J(1) and (2)(b), meaning no additional statutory aggravating factors applied to the objective gravity analysis.

Standard non-parole period: The standard non-parole period for s 61J offences is 10 years. Following Muldrock v R [2011] HCA 39, this figure operates as a legislative guidepost, representing the midpoint of objective seriousness, rather than a mandatory minimum. The court also drew on Tepania v R [2018] NSWCCA 247 for the proposition that the range of factors bearing on relative seriousness extends beyond purely objective matters, encompassing the location and circumstances of the offence.

Subjective factors: The offender's denial of guilt meant there was no evidence in mitigation beyond what appeared in the psychological report. The court took into account his mental health condition, his intellectual limitations, and his deprived background, consistent with the principles in Bugmy v The Queen [2013] HCA 37. His prior criminal record was treated as an aggravating factor relevant to specific deterrence and any entitlement to leniency, but it did not increase the objective gravity of the offending, in accordance with McNaughton [2006] NSWCCA 242.

Commencement and special circumstances: The court backdated the commencement of the sentence to 14 September 2018, taking into account the period of custody already served under the prior sentence. Special circumstances were found to exist on multiple grounds: the preceding custody under the earlier sentence, the offender's ongoing mental health needs requiring management in the community, the more restrictive prison classification the offender attracted by reason of this offence, and the need for an extended period of supervised parole to maximise any prospect of rehabilitation.

Orders Made

  • The offender was convicted of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900.
  • A non-parole period of 4 years' imprisonment was imposed, commencing 14 September 2018 and expiring 13 September 2022.
  • A further period of 3 years and 6 months' imprisonment was imposed, commencing at the expiration of the non-parole period and expiring 13 March 2026.
  • Total sentence: 7 years and 6 months, with a non-parole period of 4 years.
  • The offender is eligible to apply for release to parole on 13 September 2022.
  • Exhibits to remain on file for such period as the parties require.

Key Takeaways

  • The District Court confirmed that a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 functions as a legislative guidepost, not a presumptive outcome. It anchors to the midpoint of objective seriousness and must be adjusted by reference to all relevant sentencing factors through a process of intuitive synthesis, as described in Markarian v R [2005] HCA 25.

  • Where all aggravating features of a sexual offence are already embedded within the charged provision, those features do not operate as additional statutory aggravating factors for the purposes of assessing objective gravity.

  • Committing an offence while already in custody does not automatically increase objective seriousness, but it is a relevant consideration when assessing specific deterrence and the weight to be given to any leniency, following McNaughton [2006] NSWCCA 242.

  • An offender's intellectual limitations, mental health conditions, and background of deprivation remain relevant subjective considerations at sentencing, including where the offender maintains a denial of guilt, provided evidence of those matters is placed before the court through other sources such as psychological reports.

  • Special circumstances justifying a departure from the standard non-parole period ratio can arise from a combination of factors, including pre-sentence custody under a prior sentence, ongoing mental health needs, restrictive prison classification, and the objective of supporting community rehabilitation through extended supervised parole.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J(1) and (2)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, Part 4 Division 1A
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- Bugmy v The Queen [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- Hami Qutami [2001] NSWCCA 353
- Markarian v R [2005] HCA 25
- McNaughton [2006] NSWCCA 242
- Muldrock v R [2011] HCA 39
- R v Daley [2010] NSWCCA 223
- Tepania v R [2018] NSWCCA 247