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District Court 1 October 2019

R v JR

[2019] NSWDC 753

Sexual offencesAssault & violenceFirearms & weapons

Citation: R v JR [2019] NSWDC 753
Court: District Court of New South Wales
Date: 1 October 2019
Judge(s): Grant DCJ

Background

The offender, a 16-year-old male, pleaded guilty to two counts of aggravated sexual intercourse without consent under s 61J(1) of the Crimes Act 1900. Each offence carried a maximum penalty of 20 years imprisonment. The offender had initially entered his pleas in the Children's Court, from which the matter was referred to the District Court as a serious children's indictable offence.

The offending occurred in a car park in the early hours of 14 October 2018. The offender, armed with a hunting knife with a 20-centimetre blade, threatened the victim with stabbing and then compelled him to participate in a series of sexual acts over approximately ten minutes. Following the incident, police located the offender nearby and arrested him after identifying a knife in his possession. During the drive to the police station, the offender made serious threats against the arresting officers and their families.

In addition to the two principal offences, the court took into account an indecent assault on a Form 1 and dealt with a charge of intimidating a police officer on a s 166 certificate. The offender had been in continuous custody since 14 October 2018.

  • Whether the standard non-parole period for aggravated sexual assault applied to an offender under 18 years of age
  • How to apply the sentencing principles under s 6 of the Children (Criminal Proceedings) Act 1987 alongside the obligation to deal with a serious children's indictable offence "according to law"
  • The appropriate level of objective seriousness and the weight to give subjective factors, including the offender's youth, background, and rehabilitation prospects
  • The correct degree of accumulation across the two principal offences to reflect both individual criminality and overall totality
  • Whether the Crimes (High Risk Offenders) Act 2006 applied

Decision

Grant DCJ confirmed that the standard non-parole period of ten years for aggravated sexual assault did not apply, as s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 expressly excludes offenders under 18 years. The offender was entitled to a 25% sentencing discount for his early guilty plea under s 25D(2)(a) of the same Act.

The court assessed objective seriousness by reference to the nature of each sexual act, the use of a knife throughout much of the offending, and the degree of control and terror exerted over the victim. While the offences were connected in time and place, Grant DCJ found they constituted separate criminal acts requiring some degree of accumulation, subject to the principles of proportionality and totality. The s 166 matter (intimidating police) was subsumed within the head sentence.

On subjective matters, the court considered the offender's youth, a difficult personal history including exposure to family violence and significant trauma, diagnoses of ADHD and anxiety, the absence of prior sexual offending, and evidence of genuine remorse. Psychologists assessed the offender as presenting a moderate risk of reoffending, with scope for rehabilitation. The court acknowledged that the offender's youth and personal circumstances warranted weight in mitigation, consistent with the principles in s 6 of the Children (Criminal Proceedings) Act 1987, while also recognising the gravity of the offending.

The court imposed an aggregate sentence of three years and six months, with a non-parole period of two years. Grant DCJ also directed that the entire term be served as a juvenile offender under s 19 of the Children (Criminal Proceedings) Act 1987, and noted that the Crimes (High Risk Offenders) Act 2006 did not apply because the offender was under 18.

Orders Made

  • Aggregate sentence of three years and six months imprisonment, commencing 14 October 2018, with a head sentence expiring 13 April 2022
  • Non-parole period of two years, expiring 13 October 2020, at which point the offender becomes eligible for parole
  • Indicative sentence for Sequence 1 (aggravated sexual intercourse, fellatio): two years and six months (pre-discount: three years and four months)
  • Indicative sentence for Sequence 3 (aggravated sexual intercourse, anal intercourse): three years (pre-discount: four years)
  • Indicative sentence for s 166 matter (intimidate police officer): three months (pre-discount: four months), subsumed within the head sentence
  • Direction under s 19 of the Children (Criminal Proceedings) Act 1987 that the entire sentence be served as a juvenile offender

Key Takeaways

  • Under s 54D(3) of the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period for aggravated sexual assault has no application where the offender was under 18 years of age at the time of the offence.
  • Where a serious children's indictable offence is dealt with "according to law" in the District Court, the court must still have regard to the child-specific sentencing principles in s 6 of the Children (Criminal Proceedings) Act 1987, as confirmed in R v SDM and Paul Campbell v R.
  • Although two offences arising from a single incident share a temporal connection, separate criminal acts within that incident require some degree of accumulation to reflect individual criminality, subject to proportionality and totality.
  • The District Court noted that sentencing statistics drawn from a very small sample size were of limited, if any, value, consistent with the High Court's approach in Hili v The Queen; Jones v The Queen.
  • The Crimes (High Risk Offenders) Act 2006 does not apply to offenders who have not yet reached 18 years of age, irrespective of the seriousness of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 60(1), 61J(1), 61J(2)(b), 61L
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 17, 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 25D(2)(a), 53A, 54D(3)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- KT v R [2008] NSWCCA 51
- MS2 & Ors v R [2005] NSWCCA 397
- Paul Campbell v R [2018] NSWCCA 87
- R v GDP [2008] NSWCCA 51
- R v SDM (2001) 51 NSWLR 503
- Yardley v Betts (1979) 1 A Crim R 329