Citation: [2019] NSWDC 742
Court: District Court of New South Wales
Date: 22 November 2019
Judge(s): Hatzistergos DCJ
Background
The offender was a 24-year-old man who, in June 2005, sexually assaulted a 14-year-old girl at his apartment in Liverpool. The victim was a friend of a mutual acquaintance. On the night in question, the offender was left alone with the victim after others departed the apartment.
The offending came to light more than a decade later. DNA swabs taken from the victim's breast at Liverpool Hospital the following day were matched to the offender through a DNA link notification received by police eleven years after the assault. The offender was arrested in December 2016 and charged with six offences.
At trial in August 2019, the jury acquitted the offender on three counts of indecent assault alleged to have occurred earlier in the evening, but convicted him on three counts relating to the assault in the bedroom: aggravated indecent assault (Count 4), attempted sexual intercourse with a child aged 14 to 16 (Count 5), and sexual intercourse with a child aged 14 to 16 (Count 6).
Legal Issues
- What facts should be found for sentencing purposes, bearing in mind the jury's acquittals on counts 1 to 3
- Whether the offender was aware of the victim's age at the time of the offending
- Where the offences fell within the spectrum of objective seriousness
- What weight should be given to delay, the offender's personal circumstances, mental health, and prospects of rehabilitation
- Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the balance of the sentence
Decision
Fact-finding within the constraints of the acquittals: The court was required to sentence only on the facts consistent with the jury's verdicts. The offender was entitled to the full benefit of the acquittals on counts 1 to 3 (at [5]). Accordingly, the court could not be satisfied beyond reasonable doubt that a conversation occurred in a spare room in which the victim disclosed her age, and the court found the offender's awareness of the victim's age was not established beyond reasonable doubt (at [22]). The court similarly could not be satisfied that the offender directed KLJ to leave the bedroom (at [27]). However, the court was satisfied that the offender locked the bedroom door after KLJ left, leaving the victim more isolated in her own mind (at [32]).
Objective seriousness: The court assessed counts 4 and 5 as falling towards the mid-range of seriousness and count 6 as falling at the mid-range (at [41]). The offending involved force used against the victim's resistance and exploitation of her youth, with a 10-year age gap between the offender and the victim (at [35]). Each offence was of relatively short duration, and the offending was found to be largely opportunistic (at [41]).
Subjective circumstances and mitigating factors: The offender was not entitled to a plea discount having been convicted at trial (at [42]). The court found that the offender's moral culpability was not reduced by his deprived upbringing or mental health condition, noting that many features of that condition post-dated the offending (at [39]). The eleven-year delay between offending and arrest was accepted as a factor of fairness to the offender, though the court noted it had not produced full rehabilitation, given subsequent serious offending and custodial breaches (at [75], [82]-[83]).
Special circumstances and sentencing structure: The court found special circumstances existed, given the offender's mental health difficulties and his need for supervised reintegration into the community upon release (at [86]-[87]). The offender's prospects of rehabilitation were assessed as fair, with a medium likelihood of reoffending (at [85]). The court imposed an aggregate sentence, back-dated to 27 July 2018 to reflect principles of totality, with the offender's earliest possible release date being 26 January 2022 (at [98]).
Orders Made
- The offender was convicted on counts 4, 5 and 6.
- An aggregate sentence of 6 years imprisonment was imposed, comprising a non-parole period of 3 years and 6 months commencing 27 July 2018 and expiring 26 January 2022, followed by an additional term of 2 years and 6 months from 27 January 2022 to 26 July 2024, during which the offender is eligible to be released to parole.
- The offender's earliest possible release date is 26 January 2022.
Key Takeaways
- Where a jury returns mixed verdicts, a sentencing court must give the offender the full benefit of acquittals and cannot use contested facts underlying those acquittals to aggravate the sentence (at [5], [22]).
- The District Court confirmed that the evidentiary onus to establish a reasonable mistake of fact as to a child victim's age rests on the defence and, in this case, that onus was not discharged (at [22]).
- A significant delay between offending and arrest can be taken into account in the offender's favour as a matter of fairness, but only where the offender establishes it on the balance of probabilities and where the circumstances warrant it; delay that has not produced genuine rehabilitation carries reduced mitigating weight (at [75], [82]).
- Special circumstances justifying a longer parole period are available where an offender has mental health difficulties requiring supervised reintegration, particularly where the custodial sentence runs concurrently with or in addition to other sentences (at [86]-[87]).
- Under section 25AA of the Crimes (Sentencing Procedure) Act 1999, sentences for child sexual assault must have regard to the trauma of sexual abuse on children as understood at the time of sentencing, not merely at the time the offences were committed (at [90]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) ss 66C(3), 66D, 66M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 25AA
Cases
- Coles v R [2016] NSWCCA 32
- Elchiekh v R [2016] NSWCCA 225
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v KNL (2005) 154 A Crim R 268
- R v Sea (Unreported, 13 August 1990)
- Sabra v R [2015] NSWCCA 38