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District Court 7 August 2019

R v NK

[2019] NSWDC 549

Sexual offencesTheft & property
CRIMINAL LAW SENTENCE AGGRAVATED BREAK, ENTER AND STEAL OPPORTUNISTIC OFFENDING MILD INTELLECTUAL DISABILITY TOTALITY

Citation: R v NK [2019] NSWDC 549
Court: District Court of New South Wales
Date: 7 August 2019
Judge: Judge W Hunt

Background

The offender, NK, appeared for sentence on two separate offences committed against different victims. The first offence was indecent assault of a person under 16 years of age (the victim was 15 at the time), committed in March 2015. The offender was a trusted family friend who had been sleeping in the victim's bed; during the night he touched her vagina beneath her underwear while she slept. She woke, moved away, and the offender stopped.

The second offence was aggravated break, enter and steal, which involved the offender entering a family home at approximately 2.20am by breaking a flyscreen and manipulating a locked screen door. Once inside, he approached an eight-year-old girl who was asleep on a mattress and touched her in the vicinity of her underwear. The child's mother woke on the adjacent couch, called out, and the offender fled. The offender was 22 at the time of this second offence.

The offender was also subject to a pre-existing sentence of two years' imprisonment with a 15-month non-parole period. The sentencing exercise required the court to impose an aggregate sentence across both new offences and to address the relationship between that sentence and the pre-existing one.

  • What utilitarian discount applied to each plea of guilty, given the different stages at which each was entered?
  • What was the objective seriousness of each offence, having regard to the circumstances of the offending?
  • How did the offender's mild intellectual disability and severely dysfunctional background affect his moral culpability and the weight to be given to general deterrence?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio?
  • How should the new aggregate sentence be structured in relation to the pre-existing sentence, applying totality principles?

Decision

Utilitarian discounts: The plea in relation to the first offence (indecent assault of KB) was entered on the first day of the second trial listing, after a prior trial date had been vacated. The court accepted a 10% utilitarian discount. The plea in the second matter (EB) had been entered in the Local Court, and the court accepted a 25% discount for that earlier and more timely plea.

Objective seriousness: The first offence was assessed as falling in the middle range of objective seriousness, but towards the lower end of that range. Mitigating features included the briefly transient nature of the touching, the absence of planning, and the offender's desistance when the victim moved away. The court noted, however, that the offending occurred in the victim's home, by a trusted guest, and involved direct skin contact. The second offence, by contrast, involved a nocturnal break-in to a family home to commit an indecent assault on a sleeping eight-year-old child, and was treated as more serious.

Moral culpability and intellectual disability: The court applied the principles in Bugmy v R (2013) 249 CLR 571, recognising that the offender's mild intellectual disability and profoundly dysfunctional upbringing reduced his moral culpability. These factors did not excuse the offending but bore directly on the weight to be given to general deterrence. The court moved significantly away from the applicable standard non-parole periods for both offences on this basis.

Sentence structure: The court found special circumstances, warranting an extended parole period, on the basis that the offender required a longer period of supervised support in the community. An aggregate sentence was imposed, commencing 12 months after the start of the pre-existing sentence so as to be partially concurrent and partially accumulative with it.

Orders Made

  • The offender was convicted of both offences.
  • An aggregate sentence of four years' imprisonment was imposed, commencing 21 June 2017 and expiring 20 June 2021, with a non-parole period of 30 months (earliest parole consideration date: 20 December 2019).
  • Taking into account the pre-existing sentence, the total "compound" sentence amounted to five years' imprisonment with a non-parole period of three years and six months.

Key Takeaways

  • The District Court confirmed that a mild intellectual disability, combined with a severely dysfunctional and disturbing personal history, can reduce an offender's moral culpability and diminish the weight to be accorded to general deterrence, consistent with the High Court's reasoning in Bugmy v R.
  • Utilitarian discounts for guilty pleas are calibrated to the stage at which the plea is entered: a plea on the first day of a second trial listing attracted only 10%, while an earlier plea in the Local Court attracted 25%.
  • Opportunistic and impulsive offending, and an offender's desistance when the victim reacted, are factors relevant to assessing objective seriousness, even in offences involving child victims.
  • Special circumstances justifying a longer parole period can be established where an offender with intellectual disability requires extended supervised support upon release to the community.
  • Where an offender is already serving a sentence, totality principles require the court to structure any new sentence so that the overall "compound" term is just and appropriate, including by making it partially concurrent and partially accumulative with the existing sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- R v Engert (1995) 84 A Crim R 67
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Hemsley [2004] NSWCCA 228