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District Court 1 February 2019

R v Huckstadt

[2019] NSWDC 62

Sexual offences
CRIMINAL SENTENCE AGGREGATE FORM 1 MATTER VICTIM IMPACT STATEMENT SUBJECTIVE MATTERS

Citation: R v Huckstadt [2019] NSWDC 62
Court: District Court of New South Wales
Date: 1 February 2019
Judge: King SC DCJ

Background

The offender, a man born in 1994, met the complainant, a girl born in 2003, through volunteer work at an organisation in Young, NSW. They began communicating via Facebook Messenger and text messages, exchanges that took on a sexual character. The offender was aware the complainant was 13 years old.

The offending involved two separate occasions of penile/vaginal sexual intercourse with the complainant, who was 13 at the time. On the second occasion, the complainant also performed fellatio on the offender before the penile/vaginal intercourse occurred. The offender was aged 22 or 23 at the time of the second offence.

The offending came to light during unrelated police investigations, which led police to examine the complainant's mobile phone and discover sexually explicit messages. The offender was arrested in September 2017 and initially denied the offending. He was ultimately committed for sentence to the District Court, where he pleaded guilty at the earliest opportunity.

  • The appropriate sentence for two counts of sexual intercourse with a person aged over 10 and under 14 years, contrary to s 66C(1) of the Crimes Act 1900, with a Form 1 offence of fellatio to be taken into account on the second count
  • Whether the plea of guilty at the earliest opportunity warranted a 25% sentencing discount
  • Whether aggravating circumstances applied, including that one offence occurred in the complainant's home
  • Whether grooming could be inferred from the text message exchanges
  • Whether special circumstances existed to justify reducing the statutory relationship between the non-parole period and the head sentence
  • How the offender's subjective circumstances (age, first time in custody, rehabilitation prospects, Indigenous background) should affect the sentence

Decision

The District Court sentenced the offender on an aggregate basis. King SC DCJ applied a 25% discount to the sentence in recognition of the guilty plea entered at the earliest opportunity, accepting this as consistent with the principle in Thomson and Houlton.

The court identified several relevant features of the offending. The offending on the second occasion occurred in the complainant's home, which constituted a statutory aggravating circumstance under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. The court noted it could not find on the facts that there was a formal breach of trust, but acknowledged that the offender had failed to act within the ordinary bounds of friendship with the complainant's mother. The court also noted that the text messages likely involved some form of grooming, though it was careful not to overstate this finding given the messages were not before the court on sentence.

The court commented on the offender's own acknowledgment, recorded in a psychologist's report, that he understood the age of consent to be 16 and knew right from wrong, yet proceeded to offend on a second occasion involving two distinct sexual acts. The court found this particularly significant given his stated claim that he had stopped "halfway through" on the first occasion because he felt ashamed.

Special circumstances were found to exist, reducing the non-parole period to 50% of the head sentence rather than the statutory 75%. The grounds for this finding were the offender's relatively young age, the fact that it was his first time in custody, and the need for an extended period on parole to support rehabilitation and address sexual offending behaviour. The sentence was backdated by 167 days to account for time already spent in custody.

Orders Made

  • Aggregate sentence of four years' imprisonment imposed
  • Non-parole period of two years (reduced from the statutory proportion on the basis of special circumstances)
  • Sentence backdated to commence 18 August 2018
  • Non-parole period to expire 17 August 2020
  • Balance of term of two years, with the full term expiring 17 August 2022

Key Takeaways

  • The District Court confirmed that offences under s 66C(1) of the Crimes Act 1900 are to be treated seriously, with the legislature's intention reflected in a 16-year maximum penalty and a standard non-parole period of seven years.
  • A plea of guilty at the earliest opportunity attracted a 25% discount on the sentence, consistent with established authority in Thomson and Houlton.
  • Where text messages between an offender and a child victim carry sexual content, a sentencing court may infer the possibility of grooming, though the court here was appropriately cautious given the messages were not formally tendered on sentence.
  • Special circumstances justifying a departure from the statutory non-parole period ratio can be established by a combination of the offender's youth, first-time custody status, and the need for extended post-release supervision to support rehabilitation from sexual offending.
  • An offence committed in the complainant's home constitutes a statutory aggravating circumstance under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, even where a formal breach of trust relationship cannot be established on the facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 32

Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Bugmy v The Queen [2013] HCA 279
- Fernando v R (1992) 76 A Crim R 58
- Kentwell v R (No 2) [2015] NSWCCA 96