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District Court 6 September 2019

R v O’Sullivan

[2019] NSWDC 563

Sexual offences

Citation: R v O'Sullivan [2019] NSWDC 563
Court: District Court of New South Wales
Date: 6 September 2019
Judge: Buscombe DCJ

Background

The offender, a man in his early forties, met the victim in 2008 while working as a trolley collector at a shopping centre in Penrith. The victim was 15 years old at the time. The two entered a sexual relationship almost immediately after meeting, with the offender knowing the victim's age. The relationship involved drug use and continued into early 2009.

The offender pleaded guilty to five counts of sexual intercourse with a person aged 14 to 16 under s 66C(3) of the Crimes Act 1900, covering conduct between March and December 2008. He also pleaded guilty to one count of sexual intercourse without consent under s 61I, arising from an incident in January 2009, shortly after the victim turned 16, in which he pinned her down and forced intercourse despite her clear refusals.

The victim first approached police in April 2010 but did not proceed at that time due to her emotional state. She provided a formal statement in June 2017, and police obtained a surveillance warrant. Recorded conversations in August 2017 captured the offender acknowledging he had known the victim was under 16 and apologising for his conduct. He was arrested shortly after those conversations.

  • The appropriate aggregate sentence for six offences involving sexual conduct with a minor and rape, committed against the same victim over approximately ten months
  • The weight to be given to the significant delay between the offences (2008 to 2009) and the prosecution (2017 to 2019)
  • The relevance of the guilty pleas, the offender's prospects of rehabilitation, and the applicable standard non-parole period for the s 61I offence
  • Whether special circumstances existed to justify departing from the standard non-parole period

Decision

Buscombe DCJ sentenced the offender on agreed facts. The five s 66C(3) offences reflected a predatory pattern: the offender supplied drugs to the teenage victim, used secluded locations, and repeatedly warned her to keep the relationship secret. The sixth offence, the rape, occurred after the victim clearly refused and physically resisted. The court treated these as serious offences, noting the significant age disparity of approximately 26 years and the offender's exploitation of the victim's vulnerability.

The court took into account the guilty pleas as a significant mitigating factor, together with the offender's expressed remorse, his drug dependency at the time, and his rehabilitative prospects. The delay between the offences and the prosecution was also considered in mitigation, consistent with the approach in Hayek v R [2016] NSWCCA 126, though the court noted the offender bore responsibility for the offending regardless of when it came to light.

In relation to the s 61I rape count, the standard non-parole period was seven years. The court departed from that benchmark, citing the guilty plea and a finding of special circumstances, the latter relating to the offender's need for an extended period on parole to support rehabilitation. The court imposed indicative sentences for each count before arriving at an aggregate sentence, as required when sentencing for multiple offences.

The aggregate sentence of five years and nine months, with a non-parole period of three years and eight months, reflected both the totality principle (which requires a court to ensure the combined sentence is proportionate to the overall offending) and the subjective factors in the offender's favour. The sentence commenced from the date of arrest on 8 August 2017.

Orders Made

  • Conviction entered on all six counts to which the offender pleaded guilty
  • Indicative sentence of 2 years 3 months on the first s 66C(3) offence (sequence 1)
  • Indicative sentence of 2 years on the second s 66C(3) offence (sequence 2)
  • Indicative sentence of 2 years 3 months on the third s 66C(3) offence (sequence 6)
  • Indicative sentence of 2 years 3 months on the fourth s 66C(3) offence (sequence 3)
  • Indicative sentence of 2 years 3 months on the fifth s 66C(3) offence (sequence 4)
  • Indicative sentence of 3 years 9 months with an indicative non-parole period of 2 years 2 months on the s 61I sexual intercourse without consent offence
  • Aggregate sentence of 5 years and 9 months, commencing 8 August 2017, expiring 7 May 2023
  • Aggregate non-parole period of 3 years and 8 months, expiring 7 April 2021

Key Takeaways

  • The District Court treated the significant age disparity, use of drugs, and repeated warnings to the victim to maintain secrecy as aggravating features going to the seriousness of the s 66C(3) offences.
  • Delay between offending and prosecution can operate as a mitigating factor at sentencing, but its weight depends on the circumstances of the case, including how and why the delay arose.
  • A guilty plea and finding of special circumstances together justified a departure below the seven-year standard non-parole period applicable to the s 61I rape offence.
  • Under the aggregate sentencing regime, courts must record indicative sentences for each individual offence before fixing the overall sentence, with the totality principle guiding the final aggregate to ensure proportionality to the whole course of conduct.
  • Recorded conversations obtained through a surveillance device warrant, in which the offender acknowledged knowing the victim's age and apologised for his behaviour, were part of the agreed facts and informed the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C(3) (sexual intercourse with a child aged 14 to 16, maximum 10 years)
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent, maximum 14 years, standard non-parole period 7 years)

Cases:
- Hayek v R [2016] NSWCCA 126 (relevance of delay in sexual offence prosecutions to sentencing)