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District Court 2 May 2019

R v MR (a pseudonym)

[2019] NSWDC 440

Sexual offencesDrugs
CRIMINAL LAW SENTENCING AGGRAVATED INDECENT ASSAULT AGGRAVATED SEXUAL ASSAULT WITH A FORM 1 CAUSE TO TAKE INTOXICATING SUBSTANCE PRODUCE CHILD ABUSE MATERIAL

Citation: R v MR (a pseudonym) [2019] NSWDC 440
Court: District Court of New South Wales
Date: 2 May 2019
Judge: Wilson SC DCJ

Background

The offender, referred to by the pseudonym MR, appeared for sentencing after pleading guilty to nine charges arising from a prolonged course of conduct against two child victims. The offending spanned from December 2011 through to January 2017. One of the victims was the offender's own daughter.

The charges included aggravated sexual assault of a 13-year-old girl (referred to as Emma), aggravated indecent assault of both victims, administering diazepam to each victim with intent to commit indecent assault, and four counts of producing child abuse material. A further charge of aggravated indecent assault was not proceeded with as a standalone count but was placed on a Form 1, meaning the court took it into account as part of the sentencing exercise for the principal sexual assault count.

The offender was arrested on 15 January 2017 and remained in custody for substantial periods thereafter. He did not enter his guilty pleas until 26 November 2018, by which time the matter had been listed for trial and all witnesses, including both child victims, had been kept on standby.

  • The appropriate aggregate sentence across nine counts of serious sexual and child abuse offences
  • The weight to be given to the guilty plea, having regard to its lateness and the preparation already endured by the child victims
  • The effect of the Form 1 charge on the sentence for Count 3 (aggravated sexual assault)
  • The offender's level of insight and remorse, and how these bore on personal deterrence and retribution
  • The calculation of pre-sentence custody and the appropriate commencement date for the sentence

Decision

Wilson SC DCJ identified the applicable statutory benchmarks for each offence. The maximum penalty for aggravated sexual assault under s 61J(1) of the Crimes Act 1900 is 20 years' imprisonment, with a standard non-parole period of 10 years. For aggravated indecent assault of a child under 16 under s 61M(2), the maximum is 10 years with a standard non-parole period of 8 years. Administering an intoxicating substance under s 38 carries a maximum of 25 years with no standard non-parole period, and producing child abuse material under s 91H(2) carries a maximum of 10 years with no standard non-parole period.

The Form 1 charge attached to Count 3 and was treated in accordance with the approach in Re Attorney General's Application (No 1 of 2002), by giving greater weight to personal deterrence and community retribution when fixing the penalty for that principal count. The court noted the Form 1 matter was itself serious, carrying a maximum of 10 years and a standard non-parole period of 8 years.

The late timing of the guilty plea was a significant factor. Although a jury had not been empanelled, both child victims had been interviewed, conferenced, and held on standby from arrest to the date of the plea, a period of approximately 22 months. The court acknowledged the plea had some utilitarian value, particularly in ultimately sparing the victims from giving evidence, but the lateness of the plea limited the weight given to it as a mitigating factor.

Having considered all matters including pre-sentence custody totalling 774 days, the court imposed an aggregate sentence of 20 years' imprisonment, backdated to commence on 20 March 2017, with a non-parole period of 15 years expiring on 19 March 2032.

Orders Made

  • Aggregate sentence of 20 years' imprisonment imposed, commencing 20 March 2017 and expiring 19 March 2037
  • Non-parole period of 15 years, expiring 19 March 2032
  • The offender is eligible for parole from 19 March 2032, subject to the determination of the parole authority

Key Takeaways

  • The District Court applied the Crimes (Sentencing Procedure) Act 1999 framework for standard non-parole periods as guideposts rather than mandatory starting points, calibrating the aggregate sentence to reflect the totality of the offending across nine counts.
  • A Form 1 charge does not result in a separate penalty but increases the sentence for the principal count by directing greater weight to personal deterrence and community retribution, consistent with Re Attorney General's Application (No 1 of 2002).
  • Late guilty pleas attract reduced utilitarian weight where child victims have already been prepared for trial and held on standby, even if a jury was ultimately not empanelled.
  • Offending that involves administering drugs to children to facilitate sexual offences carries a maximum penalty of 25 years under s 38 of the Crimes Act 1900, the highest maximum among the charges in this matter.
  • Pre-sentence custody is calculated and applied by backdating the commencement of the aggregate sentence, ensuring the period spent on remand counts toward the total term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 38, 61J(1), 61M(2), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Re Attorney General's Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146
- Cahyadi v R (2007) 168 A Crim R 41
- Minehan v R (2010) 201 A Crim R 243
- Pearce v The Queen (1998) 194 CLR 610
- R v BJW (2000) 112 A Crim R 1
- R v Lulham (2016) 263 A Crim R 287