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District Court 9 August 2019

R v MR

[2019] NSWDC 589

Sexual offences
CRIME SENTENCE AGGRAVATED INDECENT ASSAULT MENTAL HEALTH ISSUES SPECIAL CIRCUMSTANCES

Citation: R v MR [2019] NSWDC 589
Court: District Court of New South Wales
Date: 9 August 2019
Judge: Bright DCJ

Background

The offender, a man born in 1971, appeared for sentencing on one count of aggravated indecent assault upon a person under the age of 16 years, contrary to s 61M(2) of the Crimes Act 1900. The victim was a four-year-old girl known to the offender through her mother, who was a friend of his. The maximum prescribed penalty for the offence is ten years' imprisonment, with a standard non-parole period of eight years.

The offending occurred on the night of 20 April 2018 at the victim's home in Berkeley Vale. The victim's mother had briefly left the home to get food, leaving the child in the offender's care. During her approximately ten-minute absence, the offender digitally penetrated the victim's vagina. The offending came to light the following day when the child made spontaneous disclosures to her mother.

The offender was arrested on 30 April 2018 and participated in a police record of interview. He was held in custody bail refused from 31 August 2018. He pleaded guilty at Wyong Local Court on 19 March 2019.

  • What was the objective seriousness of the offence, and where did it fall within the sentencing range?
  • What aggravating features applied, and how should double-counting be avoided?
  • What weight should be given to the offender's mental health issues and significant drug use at the time of the offending?
  • Was a finding of special circumstances warranted, justifying a variation of the standard ratio between the non-parole period and the balance of term?
  • What discount should be applied for the guilty plea?

Decision

Objective seriousness. Bright DCJ assessed the offending as falling in the upper end of the middle of the range. Relevant factors included the victim's very young age (four years old, at the lower end of the age range captured by the offence), the substantial age gap between the offender and the victim, the fact that the offender had been entrusted with the child's care at the time, and the nature of the physical contact, which was skin-to-skin touching of the victim's vagina. The brevity of the offending and its opportunistic nature were acknowledged as limiting factors.

Aggravating features. The Crown relied on three statutory aggravating factors: the offending occurred in the victim's home, the offender was in a position of authority over the victim, and the victim was particularly vulnerable due to her age. Her Honour found the home-based location was established as an aggravating feature. The remaining two factors had already been taken into account in assessing objective seriousness, and the court declined to double-count them.

Subjective circumstances. The offender had a limited criminal history, including a prior indecent assault from his youth and a series of drug-related matters. That history, while not extensive, disentitled him to any leniency for good character. A psychiatric report from Dr Chu documented significant methamphetamine use in the period leading up to the offending, as well as mental health considerations. Her Honour took these matters into account as part of the subjective case.

Special circumstances and sentence. The court found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying a variation of the standard non-parole to balance-of-term ratio, in light of the offender's mental health needs and the rehabilitation support he would require on release. A starting sentence of five years was reduced by 25 per cent for the guilty plea, producing a total term of three years and nine months. The non-parole period was set at two years and three months, backdated to 29 August 2018.

Orders Made

  • The offender was convicted of aggravated indecent assault of a person under the age of 16 years (s 61M(2), Crimes Act 1900).
  • Sentenced to imprisonment for a total term of three years and nine months.
  • Non-parole period of two years and three months, commencing 29 August 2018 and expiring 28 November 2020.
  • Balance of term of one year and six months, expiring 28 May 2022.
  • Special circumstances found; statutory ratio between non-parole period and parole period varied.
  • Sentence backdated to 29 August 2018 to account for time already served in custody.

Key Takeaways

  • The District Court confirmed that the very young age of a victim within an already age-based offence category is a significant factor in elevating objective seriousness, even where the offending was brief and opportunistic.
  • Where statutory aggravating factors overlap with the circumstances already used to assess objective seriousness, sentencing courts must avoid double-counting by taking those factors into account at only one stage of the analysis.
  • A prior criminal history, even a limited one, may be sufficient to disentitle an offender to the leniency ordinarily available to a person of good character.
  • Special circumstances were established here on the basis of the offender's mental health needs and the rehabilitation support required during the parole period, warranting a departure from the standard ratio between the non-parole period and the balance of term.
  • Under R v Dent (NSWCCA, 1991), cited with approval, the community's strong interest in protecting children from sexual offending by adults is a foundational premise in sentencing for this category of offence, with general deterrence and denunciation carrying significant weight.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 44(2), 54B(2)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Imbornone v R [2017] NSWCCA 144
- R v Dent (unreported, NSWCCA, 14 March 1991)