Citation: R v Seizov [2019] NSWDC 409
Court: District Court of New South Wales
Date: 13 June 2019
Judge: Haesler SC DCJ
Background
The offender, a 21-year-old man, was sentenced for offences committed in 2015 and 2016 against three young women who were part of his social circle. The offences arose from two separate New Year's Eve parties in the Southern Highlands, where the complainants were guests at overnight gatherings.
At the first party, the offender entered a room where two women were sleeping or resting and committed multiple sexual acts against each of them without consent, including digital penetration and penile penetration. He apologised to one complainant at the time and confessed to a friend that he had done the wrong thing. At the second party, one year later, the offender committed a series of indecent assaults on another young woman by repeatedly rubbing her body over her clothing while she slept.
The offender was arrested in June 2018 and made admissions to police. He entered early guilty pleas in the Local Court and the matter proceeded to sentence in the District Court. The sentencing hearing involved agreed facts and evidence from the offender himself.
Legal Issues
- What was the appropriate objective seriousness of each offence, including the relevance of the standard non-parole period of seven years for sexual intercourse without consent under s 61I of the Crimes Act 1900?
- How should the competing purposes of sentencing be weighed, including retribution, victim vindication, and the particular rehabilitation needs of a young, first-time custodial offender?
- What was the appropriate aggregate sentence, and how should the individual sentences be structured to reflect totality and partial accumulation?
- Whether special circumstances existed to justify a variation from the standard ratio of non-parole period to head sentence?
Decision
His Honour found that the offending was objectively serious and that full-time imprisonment was the only appropriate sentencing outcome. The sexual offences against the first complainant (Ms Jones) were regarded as particularly grave, involving multiple acts of penetration committed while she was frozen in shock and trust had been abused. The offending against Ms David and Ms Myer, while different in character, also involved a significant breach of trust within a friendship group.
The Court applied the standard non-parole period of seven years as a guidepost for the sexual intercourse without consent charges, ultimately departing downward from that benchmark in light of the offender's youth, early guilty pleas, remorse, and strong prospects of rehabilitation. His Honour accepted that the offender's remorse was genuine, noting his admissions to police and the evidence he gave at the sentencing hearing, including his candid acknowledgement that he could not explain to himself why he reoffended against Ms Myer.
A significant finding of special circumstances was made under the Crimes (Sentencing Procedure) Act 1999. His Honour identified the offender's youth, vulnerability in custody as a first-time prisoner, strong family and community support, work ethic, and intelligence as factors pointing to the importance of an extended parole period. The Court also relied on research indicating that adequate post-release supervision reduces reoffending among young offenders, and that prolonged or harsh custody can be counterproductive for this cohort.
The individual sentences were structured with partial accumulation and then synthesised into an aggregate sentence, applying the principle of totality to ensure the overall sentence was not disproportionate to the overall criminality.
Orders Made
- Sequence 4 (taking into account sequences 3, 5 and 6 on the Form 1): indicated sentence of 3 years 9 months, with a non-parole period of 1 year 8 months.
- Sequence 7: indicated sentence of 3 years, with a non-parole period of 1 year 6 months.
- Sequences 1 and 9: indicated sentences of 9 months imprisonment on each matter (starting point 12 months, reduced for guilty plea).
- Sequence 8 (Ms Myer): indicated sentence of 1 year 3 months, with a non-parole period of 11 months.
- Aggregate total sentence: 4 years 2 months, commencing 12 June 2018; non-parole period of 2 years 1 month.
- Eligible for parole consideration: 11 July 2020.
- Total sentence expiry: 11 August 2022.
- Significant finding of special circumstances made.
Key Takeaways
- Youth and vulnerability in custody are weighty considerations in sentencing for sexual offences, and the District Court here departed downward from the standard non-parole period on that basis, alongside the offender's early guilty plea and genuine remorse.
- A conviction for sexual intercourse without consent under s 61I of the Crimes Act 1900 carries a maximum of 14 years and a standard non-parole period of 7 years, but that benchmark must always be applied with reference to the individual offender and offence, not as a fixed floor.
- Where multiple offences are sentenced together, the totality principle requires the court to ensure the aggregate sentence remains proportionate to the overall criminality, including through partial accumulation of individual terms.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were established here by the combination of the offender's age, first-time custodial status, strong support networks, and empirical evidence that extended supervision on parole reduces reoffending among young offenders.
- The purposes of sentencing identified in this judgment included not only retribution and community protection, but also the vindication of each complainant's dignity as a distinct and expressly articulated sentencing consideration.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61I (sexual intercourse without consent), 61L (assault with act of indecency)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Cowling v R [2015] NSWCCA 213
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Tepania v R [2018] NSWCCA 247