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District Court 13 December 2019

R v MR

[2019] NSWDC 755

Sexual offencesAssault & violence
ASSAULT WITH ACT OF INDECENCY

Citation: R v MR [2019] NSWDC 755
Court: District Court of New South Wales
Date: 13 December 2019
Judge(s): Priestley SC DCJ

Background

The offender, a man aged 37 at the time of the offences, was convicted after a jury trial of five sexual offences against a 16-year-old male complainant. The offences occurred in January and February 2017 when the complainant was temporarily residing at the offender's home. The two had met through a mutual social connection, and the complainant had begun staying at the premises to assist with yard work and to visit a friend who had been incarcerated.

Over two separate nights, the offender committed a series of acts against the complainant while he was asleep or lying down. The first night involved two separate incidents: the offender reaching into the complainant's underwear and manually stimulating him (Count 1), followed later by performing oral sex on him until ejaculation (Count 2). On the second night, three further incidents of indecent touching occurred (Counts 3, 4, and 5), each time after the complainant had protested and moved away.

The complainant reported the offending to a friend that morning and subsequently to police. The offender was also subject to two section 9 bonds at the time of the offending, in relation to earlier offences of malicious damage and stalking or intimidation.

  • What was the appropriate objective seriousness of each offence, individually assessed?
  • What aggregate sentence under section 53A of the Crimes Act 1900 was appropriate across the five counts?
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio under section 44 of the Crimes (SP) Act 1999?
  • What indicative non-parole period should be recorded for the sexual intercourse without consent charge, which carried a standard non-parole period (SNPP) of seven years?
  • Whether any action should be taken in relation to the two breached section 9 bonds?

Decision

Priestley SC DCJ assessed the objective seriousness of each offence individually before fixing an aggregate sentence. Count 2, sexual intercourse without consent (oral sex performed on the sleeping complainant), was treated as the most serious offence, assessed below the middle of the range of seriousness for that offence type. The four indecent assault counts were assessed at varying levels of seriousness, with some regarded as less serious because they were interrupted by the complainant's protests or physical movement.

The Judge found that special circumstances existed to justify a non-parole period below the statutory ratio. Key factors included the fact that the offender had no prior relevant sexual offending history, the need for a structured period of supervision upon release, and other subjective matters taken into account during sentencing. This finding enabled the court to set the non-parole period at four years against a total term of six years.

For the section 61I offence (Count 2), the court was required by section 54B of the Crimes (SP) Act 1999 to record the indicative non-parole period it would have imposed if sentencing for that charge alone. The court fixed that indicative period at three years, below the SNPP of seven years, consistent with its assessment of objective seriousness as less than the midrange and reflecting the special circumstances finding.

On the breached bonds, the court took no action. Both bonds were due to expire in April 2017 and had already been operative for some 20 to 21 months. The court accepted the offender's submission that community corrections supervision on parole would provide sufficient accountability.

Orders Made

  • The offender was convicted of all five counts following jury verdicts of guilty.
  • An aggregate sentence of six years was imposed under section 53A, commencing 6 September 2019 and expiring 5 September 2025.
  • A non-parole period of four years was imposed, commencing 6 September 2019 and expiring 5 September 2023.
  • The earliest eligible release date was recorded as 5 September 2023.
  • No action was taken in relation to the two breached section 9 bonds.

Key Takeaways

  • The District Court applied an offence-by-offence assessment of objective seriousness before arriving at an aggregate sentence, consistent with the requirement that aggregate sentencing still reflect individual culpability for each count.
  • Where an aggregate sentence includes an offence carrying a standard non-parole period, section 54B(4) and (5) of the Crimes (SP) Act 1999 requires the court to record the indicative non-parole period it would have set for that offence and to explain any departure from the SNPP.
  • Special circumstances under section 44 of the Crimes (SP) Act 1999 were established here on the basis of the offender's rehabilitative needs and the utility of extended post-release supervision, permitting a non-parole period below the statutory ratio.
  • A finding that an offence falls below the middle of the range of seriousness under section 54A is a relevant factor in departing downward from the SNPP.
  • Existing bonds were not revoked where the offender would already be subject to supervision by Community Corrections upon parole release, and the Crown did not oppose that course.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I (sexual intercourse without consent), 61L (assault with act of indecency), 53A (aggregate sentences)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 44, 54A, 54B

Cases:
- Savvas v The Queen (1995) 183 CLR 1