Citation: R v Duong [2019] NSWDC 467
Court: District Court of New South Wales
Date: 23 July 2019
Judge: Grant DCJ
Background
The offender, a 35-year-old man, appeared for sentencing after pleading guilty to four principal charges arising from separate incidents. The charges were: sexual intercourse with a person aged between 14 and 16 years; possession of a shortened firearm; police pursuit; and taking or driving a conveyance without consent. A large number of additional charges, including identity information offences, fraud, and further firearms matters, were brought before the court on Form 1 documents (a procedural mechanism under which charges are acknowledged and taken into account in sentencing without separate conviction).
The sexual offending arose from a relationship the offender initiated with a 15-year-old complainant, whom he had met through a Drug Court Program attended by her stepfather. The offending was recorded on video, which police discovered during a search warrant executed for a separate matter. The firearms charges arose from the same search, which uncovered multiple firearms, substantial ammunition, stolen identification documents, a stolen EFTPOS terminal, and evidence of fraudulent transactions.
The offender had also accumulated significant traffic-related conduct, including driving whilst disqualified in a stolen vehicle and failing to stop for police. By the time of sentencing, he had been in custody for 406 days on these matters.
Legal Issues
- What indicative sentences were appropriate for each of the four principal charges, having regard to maximum penalties and objective seriousness?
- What discount applied for the guilty pleas, and at what stage were those pleas entered?
- How should an aggregate sentence be structured to reflect the totality principle while maintaining proportionality?
- What ancillary orders were appropriate in relation to the firearms, ammunition, and the recording device?
Decision
Grant DCJ applied a 25% discount to all indicative sentences after accepting the Crown's concession that the guilty pleas were entered at the earliest reasonable opportunity in the Local Court. The resulting indicative sentences were: 18 months for the sexual intercourse offence (assessed at the low end of seriousness, given the consensual nature of the relationship, the absence of violence, and no victim impact statement); 3 years 6 months for possessing the shortened firearm (assessed at mid-range, given the loaded state of the firearm and the absence of any innocent explanation for its possession); 2 years for the police pursuit offence (assessed as above mid-range); and 8 months for the conveyance offence.
In assessing the sexual offending, the court observed that the complainant was 15, that the offender had been explicitly told her age, and that the conduct only came to light because the offender filmed it. Despite characterising the offending as at the low end of the range, the court noted that the statutory prohibition exists precisely because a 15-year-old cannot lawfully consent.
On the firearms charges, the court emphasised the importance of general deterrence. Possession of a loaded firearm without innocent explanation could only be inferred to serve a criminal purpose, and the court stated that custodial sentences were necessary to deter others from illegal firearm possession.
An aggregate sentence of 5 years and 6 months, with a non-parole period of 3 years and 6 months, was imposed commencing 12 September 2018. The non-parole period expires 11 March 2022, with the head sentence expiring 11 March 2024. The court also imposed concurrent sentences and fines for the section 166 traffic matters, including a 6-month disqualification for driving whilst disqualified and a 12-month disqualification for driving under the influence.
Orders Made
- Aggregate sentence of 5 years and 6 months imprisonment imposed, with a non-parole period of 3 years and 6 months, commencing 12 September 2018.
- Concurrent sentence of 6 months imprisonment for driving whilst disqualified, with a 6-month licence disqualification.
- Fine of $250 for use of a vehicle with an unauthorised numberplate.
- Fine of $800 and 12-month licence disqualification for driving under the influence.
- The firearms and ammunition ordered to be destroyed.
- The Samsung camera and any associated storage media (containing the offending recording) consented to by the offender for destruction, and destruction noted.
Key Takeaways
- Possession of a loaded shortened firearm without an innocent explanation will be treated by the court as objectively serious mid-range conduct warranting a substantial custodial sentence, with general deterrence given significant weight.
- A 25% sentencing discount for a guilty plea is available where the plea is entered at the earliest reasonable opportunity, consistent with the requirements of the Crimes (Sentencing Procedure) Act 1999.
- Sexual intercourse with a person aged 14 to 16 under section 66C(3) of the Crimes Act 1900 may be assessed at the lower end of seriousness where the relationship was consensual in character and involved no violence, but the statutory prohibition remains absolute because a child of that age cannot lawfully consent.
- An aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 allows the court to reflect totality across multiple charges of differing gravity, rather than simply accumulating individual sentences.
- Form 1 charges, while not resulting in separate convictions, are a relevant factor taken into account in calibrating the overall sentence for the principal offences to which they attach.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 51B, 66C(3), 91G(2), 154A, 192E, 192K, 527C(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(k), 22
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), ss 7A(1), 62(1)(b), 65
- Road Transport Act 2013 (NSW), s 54(1)
Cases:
- R v Osenkowski (1982) 5 A Crim R 394