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District Court 30 August 2019

R v Sales

[2019] NSWDC 629

Sexual offences
CRIME SENTENCE SEXUAL ASSAULT COMMIT ACT OF INDECENCY PERSON UNDER 16 YEARS FAMILY MEMBER

Citation: R v Sales [2019] NSWDC 629
Court: District Court of New South Wales
Date: 30 August 2019
Judge: Norrish QC DCJ

Background

The offender, a man born in 1983, appeared for sentence in the District Court at Grafton after pleading guilty to an offence under s 61M(2) of the Crimes Act 1900: assaulting a person under 16 years of age and committing an act of indecency upon her. The maximum penalty for that offence is ten years imprisonment, with a standard non-parole period of eight years.

The offending occurred on 21 March 2016 at the home of the offender's uncle in South Grafton. The victim, aged 15 at the time, was sleeping on a mattress in the lounge room when the offender, who had become heavily intoxicated after a fishing trip, entered the room and sexually touched her while she slept. The victim woke, immediately confronted the offender, and made prompt complaints to her mother and father. The offending was described as opportunistic.

The offender had a prior criminal history dating to 2001, encompassing property and assault offences, but had no prior convictions of a sexual nature. He had significant mental health difficulties, including schizophrenia, ADHD, a history of drug and alcohol abuse, head injuries from both an accident and an assault, and an established difficulty maintaining his medication regime. At the time of sentencing he was in a wheelchair, having broken both heels.

  • What was the appropriate sentence, having regard to the standard non-parole period under s 61M(2) of the Crimes Act 1900?
  • How should the offender's intellectual disability and mental health conditions (including schizophrenia and ADHD) affect the assessment of moral culpability and the weight given to general deterrence?
  • What weight, if any, should be given to the offender's post-offence conduct, including his period in residential rehabilitation, in circumstances where his capacity to express genuine contrition was limited by his intellectual disability?
  • How should the court treat the significant delay between the offending (March 2016), the plea of guilty (November 2018), and sentencing (August 2019)?
  • What discount was appropriate for the guilty plea?

Decision

His Honour approached sentence by reference to the objective seriousness of the offending, which was characterised as opportunistic rather than premeditated, and as falling toward the lower end of the range for offences of this type. The victim was asleep when the offence occurred and made an immediate complaint. There was no evidence of serious sexual deviance.

The offender's mental health and intellectual difficulties were central to the sentencing exercise. His Honour drew on established principles from cases such as Bugmy v R, R v Fernando, and R v Engert, accepting that schizophrenia, ADHD, head injuries, and a history of substance abuse bore upon both moral culpability and the weight to be accorded to general deterrence. His Honour noted the difficulty, consistent with the Court of Criminal Appeal's observations in Muldrock, of expecting a person with intellectual disability to express contrition or give a fully accurate and honest account of their conduct. The offender's denial during the police interview was assessed in that context rather than treated simply as evidence of lack of remorse.

His Honour observed that no Community Corrections report had been requested despite the matter having been before the District Court for eight to nine months, and characterised that as an error. Notwithstanding this, sufficient material was available through psychological and other evidence to proceed to sentence. His Honour noted the offender's period of residential rehabilitation in Brisbane as a mitigating factor, and gave a 15 per cent discount for the guilty plea. The starting point for sentence was two years and three months imprisonment.

Particular concern was expressed about the offender's physical and mental health needs on entry into custody. His Honour took steps to ensure that a letter was provided to Corrective Services officers at reception directing that the offender be promptly assessed by Justice Health, noting his need for monthly injections of antipsychotic medication and his mobility limitations.

Orders Made

  • The offender was sentenced to 1 year and 11 months imprisonment.
  • A non-parole period of 6 months was imposed.
  • The sentence was backdated to June 2019 to account for matters referenced during the proceedings.
  • The court directed that a letter be provided to Corrective Services for transmission to Justice Health upon reception, requesting immediate assessment of the offender's mental health and physical health needs.

Key Takeaways

  • The District Court confirmed that an offender's intellectual disability and serious mental illness are directly relevant to the assessment of moral culpability and the weight to be given to general deterrence, consistent with Bugmy, R v Fernando, and R v Engert.
  • Where an offender with intellectual disability gives an account during police interview that is not accepted as accurate or honest, that fact does not automatically weigh against the offender at sentence; the capacity to express contrition or give a truthful account may itself be impaired, as recognised by the Court of Criminal Appeal in Muldrock.
  • Opportunistic offending, the absence of prior sexual offences, and the offender's engagement with residential rehabilitation were all treated as relevant mitigating factors in calibrating the sentence below the standard non-parole period.
  • Failing to request a Community Corrections report in a case involving significant mental health and intellectual disability issues was identified by the sentencing judge as an error, even though the matter ultimately proceeded on other material.
  • A 15 per cent discount applied to the guilty plea, reflecting the utilitarian value of the plea notwithstanding the delay between the offending and the plea.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 21A, 21A(2), 25AA(3), 54A(2), 54B(2)

Cases
- Bugmy v R [2013] HCA 37
- De La Rosa v R [2010] NSWCCA 194
- EJDG v R [2012] NSWCCA 251
- Ivimey v R [2008] NSWCCA 25
- Kennedy v R [2010] NSWCCA 260
- Kentwell v R (No 2) [2015] NSWCCA 96
- Mill v R (1988) 166 CLR 59
- Millwood v R [2012] NSWCCA 2
- Muldrock v R [2012] NSWCCA 108
- R v Engert (1995) 84 Crim R 67
- R v Fernando [1992] 72 A Crim R 58
- R v Henry (1998) 46 NSWLR 346
- R v Todd [1982] 2 NSWLR 517