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3
District Court 9 July 2019

R v MW

[2019] NSWDC 307

Sexual offences
CRIMINAL SENTENCING AGGRAVATED INDECENT ASSAULT OFFENDER’S INTELLECTUAL FUNCTIONING YOUNG VICTIMS AGE OF OFFENDER AT TIME OF COUNT 1

Citation: R v MW [2019] NSWDC 307
Court: District Court of New South Wales
Date: 9 July 2019
Judge: Lerve DCJ

Background

The offender, a man aged 28 at the time of sentencing, pleaded guilty to two counts of Aggravated Indecent Assault following committal from Wagga Wagga Local Court. Both victims were very young children. A third matter was dealt with on a Form 1 document (a mechanism allowing additional offences to be taken into account when sentencing, without a separate conviction being recorded).

Count 1 related to conduct that occurred in 2006, when the offender was 15 years old and the victim was aged 3 or 4. Count 2 related to conduct in 2017, when the offender was 26 and the victim, his niece, was 4 years old. The Form 1 matter involved a further victim, aged 6 at the relevant time.

Plea negotiations resulted in guilty pleas at arraignment in September 2018. The pleas were entered early enough to vacate the trial date and free the trial listing for other matters, which the court treated as having substantial utilitarian value.

  • What discount was appropriate for the utilitarian value of the guilty pleas?
  • Whether the standard non-parole period (SNPP) applied to Count 1, given the offender was 15 at the time of that offence.
  • How the offender's mild intellectual disability should be factored into the assessment of objective seriousness and moral culpability.
  • Whether Count 1 (and the Form 1 matter) crossed the threshold under section 5 of the Crimes (Sentencing Procedure) Act 1999 requiring full-time imprisonment.
  • How special circumstances should affect the ratio of non-parole period to total sentence for Count 2.

Decision

Guilty plea discount. The court accepted the Crown's position that the pleas carried substantial utilitarian value. Lerve DCJ allowed a 20% discount, acknowledging this sat at the more generous end of the Crown's submitted range of 15 to 20 percent.

Standard non-parole period. Because the offender was 15 at the time of Count 1, the SNPP had no application to that count under the Children (Criminal Proceedings) Act 1987. The SNPP of 8 years applied only to Count 2. For Count 2, the court applied the one-step instinctive synthesis approach confirmed in Muldrock v The Queen [2011] HCA 39, treating the maximum penalty and the SNPP as two principal guideposts.

Intellectual disability. The court received a psychological report establishing that the offender met the criteria for mild intellectual disability, with an IQ of no more than 70. Lerve DCJ applied the principles in Tepania v R [2018] NSWCCA 247, which confirmed that factors personal to an offender, including mental impairment, may be taken into account when assessing both objective seriousness and moral culpability as part of the instinctive synthesis exercise. The offender's intellectual functioning was therefore factored into the sentencing assessment.

Count 1 and the Form 1 matter. The court found that Count 1, even when the Form 1 matter was taken into account, did not cross the threshold requiring full-time imprisonment under section 5 of the Crimes (Sentencing Procedure) Act 1999. A Community Corrections Order was imposed. Count 2 was treated entirely differently: the court held that a sentence of full-time imprisonment was required, and no contrary submission had been made on the offender's behalf.

Special circumstances for Count 2. The non-parole period was set at 50% of the total sentence, representing a very substantial finding of special circumstances. The court set out reasons for that finding in its remarks, though the judgment extract does not reproduce them in full.

Orders Made

Count 1 (including Form 1 matter):
- The offender is convicted and released on a Community Corrections Order for 3 years, on conditions including:
- No further offences
- Appearance for sentence on any breach
- Notification of any change of address to the court Registrar
- Supervision by the Department of Community Corrections for the duration of the order (or a shorter period as appropriate)
- Abstention from alcohol for the duration of the order
- Participation in Alcohol and Other Drugs programmes and counselling if directed
- Participation in mental health intervention if directed
- No contact, communication, watching, stalking, harassment or intimidation of either victim

Count 2:
- The offender is convicted and sentenced to imprisonment with:
- Non-parole period: 1 year 9 months, commencing 24 May 2018, expiring 23 February 2020
- Balance of term (parole): 1 year 9 months, commencing 24 February 2020, expiring 23 November 2021
- Starting point was 4.5 years, reduced by 20% for the utilitarian value of the plea, resulting in a total sentence of 3.5 years
- The court recommended the offender's release to parole at the expiration of the non-parole period

Key Takeaways

  • Under the Children (Criminal Proceedings) Act 1987, the standard non-parole period does not apply where the offender was under 18 at the time of the relevant offence, even where that offence would otherwise attract an SNPP.
  • Following Tepania v R [2018] NSWCCA 247, an offender's intellectual disability is a factor that may be taken into account in assessing both the objective gravity of an offence and the offender's moral culpability, as part of the instinctive synthesis exercise.
  • A very substantial finding of special circumstances can justify a non-parole period as low as 50% of the total sentence, though the court must articulate its reasons.
  • The District Court treated the age of very young victims as a factor elevating the seriousness of the offending, consistent with authority including R v AJP [2004] NSWCCA 434 and R v PGM [2006] NSWCCA 310.
  • Where a guilty plea frees a trial listing with sufficient lead time, the court may treat the utilitarian value as substantial, supporting a discount toward the higher end of the applicable range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 5 and 37

Cases:
- Muldrock v The Queen [2011] HCA 39
- Bugmy v The Queen [2013] HCA 37
- Hili & Jones v The Queen [2010] HCA 45
- Tepania v R [2018] NSWCCA 247
- R v AA [2017] NSWCCA 84
- Brown v R [2014] NSWCCA 215
- BP v R [2010] NSWCCA 159
- KT v R [2008] NSWCCA 51
- RJA v R [2008] NSWCCA 137
- R v PGM [2006] NSWCCA 310
- R v AJP [2004] NSWCCA 434
- R v RP [2015] NSWDC 125
- The Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)