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District Court 22 November 2019

R v Threlkeld

[2019] NSWDC 695

Sexual offences
CRIMINAL LAW SENTENCING

Citation: R v Threlkeld [2019] NSWDC 695
Court: District Court of New South Wales
Date: 22 November 2019
Judge: Abadee DCJ

Background

The offender pleaded guilty to five counts of sexual intercourse with a person aged between 14 and 16, contrary to s 66C(3) of the Crimes Act 1900 (NSW). He also had a number of additional offences of the same character taken into account on a Form 1 (a procedural mechanism by which related offences are acknowledged at sentencing without separate conviction). All offending occurred between January and July 2015 and involved the same victim, a girl who was 14 years old at the time of the first incident and turned 15 shortly afterwards.

The offender was an adult male who had resided at, and regularly visited, the home where the victim lived under the custody of her grandparents. He and the victim had become friends through a shared interest in music. The offending unfolded across four episodes at two locations: a caravan at the family home in Rydalmere, and the offender's own home in Gerringong.

A notable feature of the factual background was that, during the period of offending, the victim disclosed to the offender that she had been the subject of long-term sexual abuse by her grandfather. The offender encouraged her to report that abuse, and subsequently provided a statement to police about it. That conduct formed part of the sentencing submissions regarding the offender's character.

  • What weight, if any, should apparent consensual participation by the victim carry in sentencing for child sexual offences under s 66C(3)?
  • How should the offender's diagnosed anxiety and depression at the time of offending be treated as a mitigating factor?
  • What sentencing credit should be given for the offender's assistance to authorities in relation to unrelated offences committed by a third party during the period of offending?
  • How should the principle of totality be applied in constructing an aggregate sentence across multiple counts arising from distinct but related episodes?
  • Whether special circumstances existed to justify a reduction in the standard ratio between the non-parole period and the total sentence.

Decision

Abadee DCJ addressed the significance of the victim's apparent willingness to participate in the sexual activity. The court confirmed the settled legal principle that consent is not a defence to charges under s 66C(3), and that apparent consensual participation cannot mitigate the offending to any significant degree. The law's purpose is precisely to protect young people below the age of 16 from sexual activity regardless of their apparent agreement, and to allow substantial mitigation on this basis would undercut that protective intent.

On the question of mental health, the court accepted that the offender suffered from anxiety and depression at the time of offending. However, the court found that the causal connection between those conditions and the commission of the offences was not sufficiently established to attract significant mitigation. The offending was found to reflect deliberate conduct rather than conduct substantially driven by mental impairment.

The offender's assistance to police in relation to the victim's grandfather's offending was acknowledged as a matter relevant to character, though the court treated this carefully. The assistance occurred in a context where the offender was himself engaged in offending against the same victim, which limited the weight it could bear. His genuine encouragement of the victim to report the abuse, and his cooperation with police, were nonetheless treated as reflecting some positive character traits alongside his otherwise strong subjective case, which included no prior convictions, genuine remorse, good prospects of rehabilitation, and a low risk of reoffending.

In applying the totality principle to construct an aggregate sentence, the court treated counts 1 and 2 (arising from the same evening) as broadly concurrent, and similarly treated counts 4 and 5 (occurring closely in time and place at Gerringong). Count 3, involving the first instance of penile-vaginal intercourse, was treated as plainly separate. The court found special circumstances warranting a departure from the standard non-parole period ratio, given the offender's first-time offending of this nature, general good character, and the benefit a longer period of parole supervision would provide for rehabilitation and reintegration.

Orders Made

  • The offender was convicted on all five counts in the indictment.
  • Indicative sentences (reflecting guilty pleas and associated Form 1 offences):
  • Count 1: 2 years, 6 months
  • Count 2: 2 years, 6 months
  • Count 3: 3 years
  • Count 4: 4 years, 6 months
  • Count 5: 4 years, 6 months
  • Aggregate term of imprisonment: 8 years, 9 months, commencing 21 August 2019 and expiring 20 May 2028.
  • Non-parole period: 5 years, 3 months, expiring 20 November 2024, after which the offender becomes eligible for parole.

Key Takeaways

  • Under s 66C(3) of the Crimes Act 1900 (NSW), apparent consensual participation by a victim aged between 14 and 16 does not operate as a meaningful mitigating factor at sentencing. The offence exists to protect that age group from sexual activity irrespective of apparent agreement.

  • A diagnosed mental health condition does not automatically attract sentencing mitigation. The District Court required a sufficiently close causal connection between the condition and the offending conduct before treating it as a significant mitigating circumstance.

  • Assistance provided to authorities in relation to a third party's offending can reflect positively on an offender's character, but its weight at sentencing is reduced where it occurred in parallel with the offender's own offending against the same victim.

  • In applying the totality principle across multiple sexual offence counts, the court assessed the temporal and spatial proximity of each episode to determine the appropriate mix of concurrent and accumulated sentences, with clearly distinct episodes bearing greater accumulated weight.

  • Special circumstances justifying a reduced non-parole period ratio may be established by a combination of first-time offending of the relevant type, general good character, low reoffending risk, and the rehabilitative benefit of extended post-release supervision.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(3)
- Crimes (Sentencing Procedures) Act 1999 (NSW)

Cases
- Cahyadi v The Queen [2017] NSWCCA 1
- CTM v R (2008) 247 ALR 1
- Fisher v R [2008] NSWCCA 129
- Hordern v R [2019] NSWCCA 210
- Muldrock v The Queen (2011) 244 CLR 120
- R v KNL (2005) 154 A Crim R 268
- R v Sea (NSWCCA, unreported, 13 August 1990)
- R v Tuala [2015] NSWCCA 8
- Wakeling v R [2016] NSWCCA 33
- R v Wright [2017] NSWCCA 102
- R v XX [2017] NSWCCA 90