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District Court 1 February 2019

R v JA

[2019] NSWDC 314

Sexual offences
CRIMINAL LAW SENTENCING 3 CONVICTIONS ONE FOLLOWING A JURY TRIAL 2 FOLLOWING GUILTY PLEA HISTORICAL CHILD SEX ABUSE

Citation: R v JA [2019] NSWDC 314
Court: District Court of New South Wales
Date: 1 February 2019
Judge: Wilson SC DCJ

Background

The offender, a man born in 1975, was sentenced on three separate offences committed across a span of roughly 27 years. The most serious offence involved the sexual abuse of his younger sister when he was 14 years old and she was nine. The remaining two offences were committed as an adult: sending unsolicited images of a penis to the same complainant via Facebook Messenger in 2014, and possessing child abuse material on his laptop in 2016.

The offender was convicted of the sexual intercourse offence after a jury trial in August 2018. He had pleaded guilty to the carriage service offence and the child abuse material offence at a relatively late stage of proceedings. He had been held in custody from his arrest in May 2016 until mid-June 2016, and again from the date of the jury verdict in August 2018.

A psychologist's report prepared by Anita Duffy was tendered on behalf of the offender. The Crown relied on a bundle of materials, an agreed summary of the complainant's trial evidence, and sentencing submissions. The complainant also provided a Victim Impact Statement.

  • What sentence was appropriate for each of the three offences, having regard to maximum penalties, the absence of standard non-parole periods, and the offender's personal circumstances?
  • What discount, if any, should be applied to reflect the late guilty pleas to two of the three charges?
  • How should sentences for offences separated by significant time periods be structured, specifically whether they should run concurrently, cumulatively, or in a combination of both, to avoid a crushing overall sentence?
  • How should time already spent in pre-sentence custody be accounted for in the overall sentence structure?

Decision

Wilson SC DCJ identified the applicable sentencing guideposts for each offence. The sexual intercourse offence under s 66A of the Crimes Act 1900 carried a maximum of 20 years imprisonment at the time it was committed (the current maximum is life imprisonment). The carriage service offence under s 474.17(1) of the Criminal Code Act 1995 (Cth) carried a maximum of three years, and the child abuse material offence under s 91H carried a maximum of ten years. None of the three offences attracted a standard non-parole period.

For the two guilty-plea offences, the court applied a 10% discount to reflect the utilitarian value of those pleas, noting they were entered at a relatively late stage of proceedings. No discount applied to the jury-trial conviction.

The court found that because the three offences were temporally disconnected, wholly concurrent or wholly cumulative sentences would be inappropriate. A partially concurrent and partially cumulative structure was adopted to reflect the distinct nature of each offence without producing an aggregate sentence that was crushing. The court also noted that uncharged conduct of a similar nature referred to in the agreed facts was expressly put aside and did not inform the sentence.

The sentence was backdated to commence on 25 July 2018 to account for time already served in pre-sentence custody. A direction was made for the psychologist's report to accompany the offender's warrant of commitment.

Orders Made

  • Carriage service offence (s 474.17(1) Criminal Code): Fixed term of 6 months imprisonment, commencing 25 July 2018 and expiring 24 January 2019.
  • Possess child abuse material (s 91H Crimes Act): Non-parole period of 12 months commencing 25 December 2018, expiring 24 December 2019; head sentence of 18 months expiring 24 June 2020.
  • Sexual intercourse with a child under 10 (s 66A Crimes Act): Non-parole period of 2 years and 8 months commencing 25 November 2019, expiring 24 July 2022; head sentence of 4 years and 8 months expiring 24 July 2024.
  • Overall effective sentence: 6 years commencing 25 July 2018 and expiring 24 July 2024, with an effective non-parole period of 4 years expiring 24 July 2022.
  • Direction that the psychologist's report accompany the offender's warrant of commitment.

Key Takeaways

  • Where multiple offences are separated by significant periods of time, a partially concurrent and partially cumulative sentencing structure may be appropriate to reflect the distinct criminality of each offence while avoiding a crushing aggregate term.
  • A guilty plea entered at a late stage of proceedings may still attract a discount, though the discount will be modest; here, the court applied 10% to the two plea matters.
  • The District Court held that uncharged but similar conduct referred to in agreed facts was expressly excluded from sentencing consideration, so that the sentence addressed only the charged offences.
  • Maximum penalties serve as a parliamentary gauge of offence seriousness; the court noted the significant legislative change to s 66A since the time of the offending, with the maximum penalty having increased from 20 years to life imprisonment.
  • Pre-sentence custody across multiple discrete periods can be accounted for by backdating the commencement date of the overall sentence rather than by applying separate adjustments to individual terms.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A, 91H
- Criminal Code Act 1995 (Cth), s 474.17(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Barbaro v R; Zirilli v R (2014) 253 CLR 58
- Conte v R [2018] NSWCCA 209
- Jonson v R (2016) 263 A Crim R 268
- Monis v The Queen; Droudis v The Queen (2013) 249 CLR 92
- R v AA [2017] NSWCCA 84
- R v AJP (2004) 150 A Crim R 575
- R v Lulham (2016) 263 A Crim R 287
- The Queen v Pham (2015) 256 CLR 550