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District Court 11 June 2019

R v Johnston (a pseudonym) [No 2]

[2019] NSWDC 410

Sexual offencesAssault & violence
ASSAULT WITH ACT OF INDECENCY CHILD IS OFFENDER’S STEP DAUGHTER SENTENCING FACTORS ASSESSMENT OF OBJECTIVE SERIOUSNESS IMPACT ON VICTIMS EXPRESSION OF REMORSE TOO LATE

Citation: R v Johnston (a pseudonym) [No 2] [2019] NSWDC 410
Court: District Court of New South Wales
Date: 11 June 2019
Judge(s): Haesler SC DCJ

Background

Following a jury trial at Wollongong District Court, the offender (referred to by the pseudonym Phillip Johnston) was convicted of six sexual offences against his stepdaughter, Christine (also a pseudonym). The offences occurred at the family home and spanned the period from late 2008 to March 2009, when Christine was aged seven, and a further incident when she was ten. The offences included four counts of sexual intercourse with a child under ten and two counts of assault with an act of indecency on a child under ten, all under the Crimes Act 1900.

A second indictment arose after the jury verdict in the first trial. Johnston entered guilty pleas to three counts involving two further complainants: Monika Brown, who was twelve at the time of the offending (occurring between January 2012 and January 2013), and Natalie Green, who was twelve to sixteen at the time of the offending (occurring between August 2015 and August 2017). In both cases, Johnston had become known to the complainants through family social connections. He also admitted two additional acts of indecency that were taken into account on a Form 1 (a procedure under NSW law allowing other offences to be acknowledged at sentencing without separate conviction, affecting the sentence for the principal offence).

The sentencing proceedings required the court to assess individual sentences for nine counts across two indictments and then impose a single aggregate sentence that reflected the totality of the offending.

  • How to assess the objective seriousness of each individual offence, having regard to the maximum penalties and standard non-parole periods fixed by Parliament
  • The correct sentencing methodology following the High Court's decision in Muldrock (2011), including the application of s 54B of the Crimes (Sentencing Procedure) Act 1999
  • What weight to give to the offender's post-trial acceptance of responsibility and expressions of remorse
  • How to reconcile the standard non-parole periods for sexual assault (s 66A) and indecent assault (s 61M), which have been criticised for their internal inconsistency
  • How to apply the principle of totality when constructing an aggregate sentence across multiple victims and two indictments

Decision

The court proceeded by applying an instinctive synthesis of all relevant sentencing factors, consistent with the approach required by Markarian and Muldrock. Haesler SC DCJ declined to start from the maximum penalty or standard non-parole period and work backwards proportionally; instead, the standard non-parole periods served as one of several measures to be balanced against the full range of relevant considerations. The court noted the long-recognised difficulty in reconciling the standard non-parole period ratios for s 61M(1) and s 61M(2), citing the criticism in BT v R and Gavel.

On the question of remorse and responsibility, the court acknowledged that Johnston had, through his counsel and psychologist, accepted responsibility for his crimes after the verdict. However, the court treated this acceptance as coming too late to attract significant mitigation, given that it followed a contested trial in which the complainants were required to give evidence. No prior criminal history was recorded, and the court noted the need for Johnston to undertake custodial sex offender programmes.

The court took into account the serious impact on all three complainants. The offending against Christine was treated as the most grave, involving penile vaginal intercourse, fellatio, cunnilingus, and digital penetration of a child aged seven, committed by a person in a position of trust and authority. The offending against Monika and Natalie, while less serious in degree, still involved significant breaches of trust toward children known to the offender through family connections. A modest discount was applied to the counts on the second indictment to reflect the utilitarian value of the late guilty pleas.

Applying the totality principle, the court constructed individual sentences for all nine counts and then imposed a single aggregate sentence of 16 years and six months, with a non-parole period of 12 years. The court found no special circumstances warranting a variation to the standard ratio between the non-parole period and the balance of term.

Orders Made

Indictment relating to Christine (first indictment):
- Count 1 (s 66A): non-parole period of 10 years and 3 months; total sentence of 14 years
- Count 2 (s 66A): non-parole period of 9 years; total sentence of 12 years
- Count 3 (s 61M(2)): non-parole period of 2 years and 3 months; total sentence of 3 years
- Count 4 (s 66A): non-parole period of 10 years and 3 months; total sentence of 14 years
- Count 5 (s 66A): non-parole period of 9 years; total sentence of 12 years
- Count 6 (s 61M(2)): total sentence of 1 year and 6 months; non-parole period of 1 year and 1 month

Indictment relating to Monika and Natalie (second indictment):
- Count 1 (s 61M(2), Monika): non-parole period of 1 year and 4 months; total sentence of 1 year and 9 months (Form 1 taken into account)
- Count 2 (s 61M(2), Natalie): non-parole period of 1 year and 6 months; total sentence of 2 years
- Count 3 (s 61M(1), Natalie): non-parole period of 7 months; total sentence of 10 months

Aggregate sentence:
- Total aggregate sentence: 16 years and 6 months
- Aggregate non-parole period: 12 years, commencing 5 January 2018, expiring 4 January 2030
- Balance of term: 4 years and 6 months, commencing 5 January 2030
- Total sentence expiry: 4 July 2034
- No special circumstances found

Key Takeaways

  • The District Court applied the instinctive synthesis methodology required by Markarian and confirmed post-Muldrock: sentencing courts are not required to identify how the instant offence differs from a notional mid-range offence, but must still assess the objective gravity of each offence and treat standard non-parole periods as one factor among many.

  • Acceptance of responsibility and expressions of remorse offered only after a contested jury trial attracted limited mitigating weight, because the complainants had been required to give evidence throughout.

  • A long-standing tension in the standard non-parole period framework for child sexual offences was acknowledged: the ratio between the maximum penalty and the standard non-parole period for s 61M(1) has been judicially criticised as internally inconsistent when compared with the ratio applying to s 61M(2).

  • Under the totality principle, individual sentences across multiple counts and multiple victims must be synthesised into an aggregate that reflects the overall criminality without being crushing, drawing on the warning in Weininger against reducing a complex human situation to "harsh mathematics."

  • Position of trust and authority over a child victim, including a stepparent relationship, remained a significant aggravating factor in the objective assessment of seriousness across all counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 61M(1), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 54B

Cases:
- BT v R [2010] NSWCCA 267
- Gavel [2014] NSWCCA 56
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- NJK [2011] NSWCCA 151
- R v Herring (1956) 73 WN (NSW) 203
- R v Johnston (a pseudonym) [2019] NSWDC 61
- R v Thompson (2000) 49 NSW