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District Court 16 September 2019

R v GP

[2019] NSWDC 493

Sexual offences
CRIMES PLEA OF GUILTY AT ARRAIGNMENT CRIMES SENTENCING MORAL CULPABILITY REMORSE

Citation: R v GP [2019] NSWDC 493
Court: District Court of New South Wales
Date: 16 September 2019
Judge: Lerve DCJ

Background

The offender, whose identity was initialised to protect the identity of the child complainants, was the stepfather of the two victims. He pleaded guilty at arraignment to two counts on indictment. The first count related to maintaining an unlawful sexual relationship with a child (his stepdaughter, aged 12 to 13) between March and November 2013, involving multiple acts of penile-vaginal intercourse, fellatio, and cunnilingus across several locations in New South Wales, Queensland, and the Australian Capital Territory. The second count related to an act of indecent assault on a different child victim (aged 13) in September 2017.

The offending on the first count was sustained and serious. It began the night before the offender's wedding to the victims' mother and continued over several months, including during family holidays and a trip to Canberra for medical treatment. The offender used threats, including threats of suicide and warnings that disclosure would ruin the family, to maintain the victim's silence.

The matter proceeded to a sentence hearing before Lerve DCJ following the offender's guilty pleas at arraignment. Both the appropriate plea discount and the proper approach to that discount were in dispute.

  • What utilitarian discount should apply to the guilty pleas entered at arraignment: 15% (as submitted by the Crown) or 20% (as submitted by the defence)?
  • Whether any additional, unquantified allowance for "facilitating the course of justice" should be incorporated into the instinctive synthesis of the sentence, separately from the numerical plea discount.
  • What total sentence was appropriate having regard to the objective seriousness of the offending, the standard non-parole period, the maximum penalties, and all relevant subjective factors?
  • Whether partial accumulation was appropriate given the offending involved two separate victims at different times.

Decision

On the question of the plea discount, Lerve DCJ accepted the defence submission and applied a 20% discount, describing it as bordering on the generous in the circumstances. While the case had never been listed for trial, the committal had occurred, and the victims were notified of the pleas relatively quickly after committal.

On the double-counting submission, the court firmly rejected the defence argument that, in addition to the numerical discount, a further unspecified allowance should be made within the instinctive synthesis for the offender's willingness to facilitate the course of justice. The court noted that the expression "facilitate the course of justice" is typically used in the Commonwealth sentencing context. More fundamentally, the numerical plea discount already accounts for the utilitarian benefits of the plea, and any additional allowance would constitute impermissible double-counting.

Lerve DCJ assessed the starting point for the maintained unlawful sexual relationship charge at 17 years imprisonment, reduced to 13 years and 6 months after the 20% plea discount. The starting point for the indecent assault charge was 2 years imprisonment, reduced to 19 months. The court found that partial accumulation was appropriate to reflect the fact that the two offences involved different victims and occurred at different times, with a finding of special circumstances to adjust the non-parole period ratio accordingly.

The total effective sentence was 14 years imprisonment. The court observed that the seriousness of the first offence, which carries a maximum penalty of life imprisonment, required a substantial custodial sentence, and noted that the defence did not substantially contest that proposition in respect of that charge.

Orders Made

  • The offender was convicted on both counts.
  • Count 2 (Aggravated Indecent Assault, s 61M(2) Crimes Act 1900): Non-parole period of 14 months commencing 17 January 2018 (expired 16 March 2019); balance of term on parole of 5 months commencing 17 March 2019 (expired 16 August 2019).
  • Count 1 (Maintain Unlawful Sexual Relationship with a Child, s 66EA(1) Crimes Act 1900): Non-parole period of 9 years and 9 months commencing 17 July 2018 (expiring 16 April 2028); balance of term on parole of 3 years and 9 months commencing 16 April 2028 (expiring 16 January 2032).
  • Total effective sentence: 14 years imprisonment.
  • Minimum time in actual custody before parole eligibility: 10 years and 3 months (approximately 73% of the total effective sentence).
  • The court recommended the offender's release at the expiration of the non-parole period.

Key Takeaways

  • A guilty plea discount and any allowance for "facilitating the course of justice" address the same utilitarian considerations: applying both within a sentencing exercise constitutes impermissible double-counting, and the District Court declined to depart from that principle.
  • Under NSW sentencing practice, the expression "facilitating the course of justice" as a distinct sentencing consideration is primarily associated with Commonwealth offending; its application in State sentencing proceedings is, at minimum, constrained.
  • Partial accumulation of sentences is appropriate where offending involves separate victims at different times, and such accumulation justifies a finding of special circumstances to adjust the non-parole period ratio.
  • Where an offence carries a maximum penalty of life imprisonment and involves sustained sexual abuse of a child by a person in a position of trust and authority, a substantial sentence of imprisonment is required.
  • A 20% utilitarian plea discount remained available at arraignment following committal for trial, even where the case had not been listed for a trial date, where the victims were notified of the pleas promptly and some preparatory work had been done.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66EA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Cameron v The Queen (1999) 209 CLR 339
- Xiao v R [2018] NSWCCA 4
- KAB v R [2015] NSWCCA 55
- Bugmy v The Queen [2013] HCA 37
- MC v R [2017] NSWCCA 316
- Mills v R [2017] NSWCCA 87
- R v Burchell (1987) 34 A Crim R 148
- R v Muldoon (unreported, NSWCCA, 13 December 1990)
- R v SAG (2004) 147 A Crim R 301
- R v Tuala [2015] NSWCCA 8
- R v Van Ryn [2016] NSWCCA 1