AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 22 February 2019

R v Mondinos

[2019] NSWDC 677

Sexual offences
CRIMINAL LAW SENTENCE FOLLOWING TRIAL SEXUAL ASSAULT AGGRAVATION INDECENT ASSAULT PRE

Citation: R v Mondinos [2019] NSWDC 677
Court: District Court of New South Wales
Date: 22 February 2019
Judge: Judge W Hunt

Background

The offender was convicted following a jury trial of nine sexual offences committed against two victims: his foster sister (referred to as SK) and his stepdaughter (referred to as MB). The offending against SK occurred between 2000 and 2003, when she was approximately ten to thirteen years of age. The offending against MB occurred between 2006 and 2007, when she was his stepdaughter and under his authority.

The offences included indecent assault, acts of forced fellatio, and penile-vaginal sexual intercourse. The jury trial was conducted at Nowra District Court in August 2018 and returned guilty verdicts on all nine counts. Three alternative counts on the indictment were not proceeded with following those verdicts.

At the sentencing hearing, the offender expressed no remorse. During the trial, the Crown had relied on a pretext call in which the offender appeared to acknowledge wrongdoing against SK, but he gave sworn evidence disavowing this interpretation. The jury rejected his evidence.

  • Whether standard non-parole periods applied to the offences, given that the date range for offences against SK straddled the commencement of the standard non-parole period regime
  • Whether the victims were "under the authority" of the offender, as an aggravating circumstance
  • Whether the offending was planned or opportunistic
  • Whether the fact that offences were committed in the victim's home (which was also the offender's home) constituted an aggravating circumstance
  • How the principles of totality should operate in constructing an appropriate aggregate sentence

Decision

Judge Hunt determined that the standard non-parole period provisions did not apply to the offences against SK, because the indictment date range straddled the period before and after those provisions commenced, and the jury's verdicts could not pinpoint the dates of offending. For the offences against MB, standard non-parole periods did apply and were treated as benchmarks and guideposts in the sentencing exercise.

The court found that MB was under the offender's authority as his stepdaughter, and that each offence against her involved a significant breach of trust. This was treated as an aggravating circumstance even though it had not been averred as a particular on the indictment. The court was not persuaded that SK was under the offender's authority, despite his being her older foster brother and approximately eight years her senior.

The court accepted that the offending was largely opportunistic rather than reflecting entrenched paedophilic conduct, consistent with expert psychological evidence from Dr Lennings. However, Judge Hunt noted that all of the offender's known offending had been against young female persons, and considered that a question mark remained over the characterisation of the conduct as purely opportunistic.

On totality, the court applied the principle from R v MA that the non-parole period must represent the least period required to satisfy the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act. Where counts were factually connected, the court applied more modest notional accumulation. No special circumstances were found to justify a departure from the statutory non-parole period ratio.

Orders Made

  • Aggregate term of imprisonment of 14 years, commencing 7 July 2017 and expiring 6 July 2031
  • Non-parole period of 10 years and 6 months, expiring 6 January 2028
  • Indicative sentences were set for each count: ranging from 2 years (count 1) to 10 years with a non-parole period of 7 years and 6 months (count 12)
  • Recommendation to the Department of Corrective Services that the offender be considered for enrolment in a denier's program
  • Recommendation that a copy of Dr Lennings' psychological report be forwarded to the governor of the gaol where the offender was held
  • Suppression order on the offender's identity lifted

Key Takeaways

  • The District Court confirmed that where an indictment date range straddles the commencement of the standard non-parole period regime, and jury verdicts cannot identify when within that range the offending occurred, it is appropriate to disregard the standard non-parole period and have regard only to maximum penalties.
  • Under R v Johnson [2016] NSWCCA 286, the fact that an offender commits offences in a dwelling that is simultaneously the victim's home and the offender's own home does not preclude that circumstance from being treated as aggravating.
  • A sentencing court is entitled, following R v Gavel [2014] NSWCCA 56, to proceed on the basis that serious child sexual assault can be expected to produce adverse psychological consequences, even without direct evidence of those consequences in each case.
  • Steps taken by an offender to ensure he was alone with a victim before offending did not, on the facts here, rise to the level of significant planning; the court characterised such conduct as inherent to this type of offending rather than a distinct aggravating feature.
  • An aggregate sentence must be constructed with reference to the principle in R v MA [2001] NSWCCA 30 that the non-parole period should be the least period that properly discharges the sentencing purposes under s 3A, and where counts are factually connected, the degree of notional accumulation applied may be more modest.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(1), 53A
- Crimes Act 1900 (NSW)

Cases
- R v Gavel [2014] NSWCCA 56
- R v Johnson [2016] NSWCCA 286
- R v MA [2001] NSWCCA 30