R v Jenner

Citation: R v Jenner [2019] NSWDC 50
Court: District Court of NSW
Date: 27 February 2019
Judge(s): Colefax SC DCJ

Background

The offender was a married man with four children who had volunteered at a local church by running discos for young people with disabilities. Through this role, he met the victim, a 24-year-old woman with a moderate intellectual disability who had the mental capacity of a ten-year-old and was under the full-time care of her family.

Over two occasions in November 2017, the offender took the victim to an isolated location on Mount Panorama under the guise of driving her home and had unprotected sexual intercourse with her on each occasion. The victim objected on both occasions, verbally telling the offender to stop, and on the second occasion also attempting to push him away. A non-publication order protects the victim's identity.

The offender appeared for sentencing after pleading guilty to two offences of sexual intercourse with a cognitively impaired person with the intention of taking advantage of that impairment, contrary to section 66F(3) of the Crimes Act 1900 (NSW).

Legal Issues

• What was the appropriate sentence for two offences under section 66F(3) of the Crimes Act, each carrying a maximum penalty of eight years imprisonment?
• How should the objective seriousness of each offence be assessed?
• What weight should be given to the offender's personal circumstances, including his difficult upbringing and psychological profile?
• Were special circumstances present to justify varying the standard ratio between the head sentence and the non-parole period?

Decision

Objective seriousness: The court assessed both offences as mid-range in terms of their objective seriousness for offences of their kind (at [16], [21]). The court noted the absence of ejaculation within the victim but observed that the risks of pregnancy and disease were nevertheless real on both occasions (at [20]).

Personal circumstances: The court acknowledged the offender's unfortunate upbringing, which included parental separation, an abusive stepfather, and bullying at school (at [25]-[26]). However, the court found no causal connection between his psychological profile and the offences, and expressly held that his background provided no excuse for his conduct (at [28]). Mitigating factors considered included his work history, his role as a father, and the absence of prior offences, mental illness, or substance abuse issues (at [37]-[38]).

Responsibility and rehabilitation: The court found that the offender had not fully accepted responsibility for his conduct even at the time of sentencing, remaining equivocal about the full criminality of his actions (at [29]). This significantly affected the assessment of his rehabilitation prospects, which the court described as guarded (at [34]). The court also noted that the offender's wife had sought to place some blame on the victim during proceedings, which the court found would not assist his rehabilitation (at [31]). His assessed medium risk of re-offending was attributed in part to his reluctance to fully acknowledge what he had done (at [30]).

Sentence: The court determined that only full-time imprisonment was appropriate (at [35]). Before applying the 25 percent discount for the early guilty plea, the indicative sentence for each offence was four years, reduced to three years after discount (at [40]-[41]). The court imposed an aggregate sentence with some accumulation to reflect that two serious criminal acts were committed against the same victim (at [42]). Special circumstances were found on the basis that this was the offender's first period of custody and that his psychological profile would make custody harder for him than for others, justifying variation of the standard head sentence to non-parole period ratio (at [43]).

Orders Made

• The offender was sentenced to an aggregate term of five years imprisonment across both offences.
• A non-parole period of three years was fixed, commencing 27 February 2019 and expiring 26 February 2022.
• The balance of the sentence of two years was fixed to commence 27 February 2022 and expire 26 February 2024.
• Copies of the Sentencing Assessment Report and the psychologist's report were directed to be provided to the Corrective Services Department, with a strong recommendation that the moderate intensity sex offender program be made available to the offender.

Key Takeaways

• Under section 66F(3) of the Crimes Act 1900 (NSW), sexual intercourse with a cognitively impaired person with the intention of exploiting that impairment carries a maximum of eight years imprisonment and attracts no standard non-parole period. The District Court assessed offences in this case as mid-range in objective seriousness notwithstanding the victim's clear objections on both occasions (at [3], [16], [21]).

• A difficult personal history, including childhood abuse and a resulting psychological profile, does not necessarily mitigate criminal liability for sexual offences where the court finds no causal connection between that history and the offending conduct (at [28]).

• Incomplete acceptance of responsibility at the time of sentencing was treated as a significant adverse factor bearing on rehabilitation prospects and on the application of the principle of special deterrence (at [29]-[30]).

• Special circumstances justifying a variation to the head sentence to non-parole period ratio were established where the offender was serving his first custodial sentence and where his psychological profile indicated he would experience custody more acutely than others (at [43]).

• An early guilty plea that spares a vulnerable victim from giving evidence at trial is a relevant mitigating factor. Here, the court applied a 25 percent discount to the otherwise applicable four-year indicative term for each offence (at [36], [40]-[41]).

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW) 1900: s66F(3)

Cases
- Not stated