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District Court 29 July 2019

R v Macquarie (a pseudonym)

[2019] NSWDC 763

Sexual offencesPublic order & justice offences
CRIME SENTENCE

Citation: R v Macquarie (a pseudonym) [2019] NSWDC 763
Court: District Court of New South Wales
Date: 29 July 2019
Judge: Colefax SC DCJ

Background

The offender, referred to by the pseudonym Mr Macquarie, was the stepfather of a man facing 18 counts of alleged sexual assault against a child. In the lead-up to the accused's trial, Mr Macquarie obtained access to the Crown's brief of evidence, which had been provided to the accused's legal advisers. That brief identified both the child complainant (referred to as Shirley, a pseudonym) and her aunt (Ms X) as Crown witnesses.

Between 6 and 13 March 2018, Mr Macquarie delivered a series of threatening documents to Ms X, both at her workplace and at her home address. The documents contained financial, emotional, and media-related threats directed at Ms X, with the contemplation that their contents might also reach Shirley. One passage in the documents invoked the image of a child who had died by suicide, in circumstances where the offender knew there was a real possibility Shirley would read it.

Mr Macquarie appeared for sentence having pleaded guilty at an early opportunity to one count of doing an act with the intention of perverting the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW).

  • What was the appropriate objective seriousness of the offending?
  • What weight should be given to the offender's significant psychological conditions, including autism spectrum disorder, chronic complex PTSD, persistent depressive disorder, and borderline personality disorder?
  • Was a custodial sentence inevitable, and if so, what head sentence and non-parole period were appropriate?
  • Were there special circumstances justifying a variation to the standard 75% non-parole period ratio?

Decision

His Honour found the objective seriousness of the offending to be slightly above the mid-range for an offence of its kind, contrary to the joint submission of both the Crown and defence that it fell within the mid-range. The court characterised the conduct as an attack on the administration of justice at its most fundamental level, noting that intimidating young witnesses in child sexual assault cases represents one of the most serious forms of attempting to pervert the course of justice.

The court accepted Mr Macquarie's diagnosed psychological conditions, particularly his autism spectrum disorder, as relevant to the nature and thoroughness of his conduct. To an extent, these conditions reduced the weight given to general and specific deterrence. However, the court drew a clear distinction between the conditions explaining the methodical quality of the offending and the underlying viciousness of the threats themselves, which the conditions did not excuse.

Mr Macquarie's expressions of remorse were accepted as genuine, though the court noted they were less fulsome in the context of his psychological profile. His prospects of reoffending were assessed as very low. Taking into account his effectively clear criminal record, his first-time status in custody, and the harsher impact that imprisonment would have on him given his conditions, the court made a finding of special circumstances.

A full 25% discount was applied for the early guilty plea. The court reduced what would otherwise have been a four-year sentence to three years, and varied the non-parole period ratio on the basis of special circumstances to set both the non-parole period and the balance of the sentence at 18 months each.

Orders Made

  • Head sentence of three years' imprisonment imposed from 29 July 2019, expiring 28 January 2022.
  • Non-parole period of one year and six months, commencing 29 July 2019 and expiring 28 January 2021.
  • Balance of sentence (parole period) of one year and six months, commencing 29 January 2021 and expiring 28 January 2022.
  • Finding of special circumstances made to justify the reduced non-parole period ratio.

Key Takeaways

  • The District Court confirmed that intimidating witnesses in child sexual assault proceedings represents one of the gravest forms of perverting the course of justice, with the court assessing objective seriousness as slightly above the mid-range despite a joint submission to the contrary.
  • A diagnosed autism spectrum disorder, alongside other psychological conditions, can reduce the weight given to general and specific deterrence at sentence, but does not constitute a defence and will not explain the deliberate, harmful quality of threatening conduct.
  • Where imprisonment will bear more heavily on an offender because of a significant psychological condition, that factor can contribute to a finding of special circumstances, even if no single factor would be sufficient on its own.
  • Under s 319 of the Crimes Act 1900 (NSW), the maximum penalty for doing an act with the intent to pervert the course of justice is 14 years' imprisonment, and no standard non-parole period applies.
  • First-time custody status alone is insufficient for a finding of special circumstances, consistent with Court of Criminal Appeal authority, though it may be weighed alongside other factors in combination.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319 (doing an act with the intention of perverting the course of justice)

Cases:
- No cases were cited in the provided text, though the judgment references Court of Criminal Appeal authority on the insufficiency of first-time custody status as a standalone basis for a special circumstances finding.