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District Court 16 December 2019

R v Rush

[2019] NSWDC 773

Sexual offences
SENTENCING SEXUAL INTERCOURSE CHILD UNDER 16 TWO COMPLAINANTS YOUNG BUT ADULT OFFENDER APPLICATION OF RELEVANT PRINCIPLES IS A NON

Citation: R v Rush [2019] NSWDC 773
Court: District Court of New South Wales
Date: 16 December 2019
Judge: Haesler SC DCJ

Background

The offender was 18 years and 5 months old when, on a single night in December 2012, he committed sexual offences against two girls aged 15, referred to in the judgment by pseudonyms. All four young people knew each other socially and had driven together to an isolated beach on the NSW South Coast. The offences occurred in the early hours of the morning following a period of socialising around a beach fire.

The first offence involved penile-vaginal intercourse with the first complainant on the beach. The second offence involved penile-vaginal intercourse with the second complainant in the offender's car shortly afterwards, preceded by fellatio which was placed on a Form 1 (a document recording a related offence taken into account at sentencing without a separate conviction being entered).

The complainants reported the offences to police in September 2015, nearly three years after the events. The offender was arrested in February 2017 and, after initially denying the conduct, made admissions. He was not sentenced until December 2019, by which time he was 25 years old. In the intervening years, text messages and a covertly recorded conversation demonstrated expressions of contrition.

  • What is the appropriate sentence for sexual intercourse with a child under 16, having regard to all relevant circumstances?
  • What weight should be given to the offender's youth and immaturity at the time of the offences?
  • What weight should be given to demonstrated rehabilitation and the significant delay between the offending and sentencing?
  • Does a late guilty plea, in combination with other factors, support a non-custodial outcome?
  • Is a community correction order with community service an available and appropriate alternative to imprisonment?

Decision

Haesler SC DCJ emphasised that offences under s 66C of the Crimes Act 1900 are serious, and that courts must assume a real risk of harm of more than a transitory nature to child complainants. The maximum penalty of 10 years imprisonment reflects the gravity with which Parliament treats such conduct. Both victim impact statements, read aloud at sentencing, confirmed that the offences had caused ongoing harm to both complainants.

However, the sentencing judge gave significant weight to the offender's age and immaturity at the time of offending. Drawing on CTM v The Queen and KT v R, His Honour found that adolescent behaviour of this kind falls within the spectrum of conduct Parliament contemplated when enacting s 66C, and that a young adult's moral culpability should not be measured by the same standard applied to mature adults. The offending appeared to be confined to this one night, and the offender had no prior or subsequent criminal history.

The late guilty pleas, entered on the first day of the scheduled trial in August 2019, were assessed as having some utilitarian value: the complainants were spared from giving evidence, though they had endured prolonged anticipation. The pleas attracted a 10% discount in the ordinary course. His Honour also noted that, by the time of sentencing, the offender had made significant and genuine progress toward rehabilitation, supported by evidence of stable employment, family support, remorse, and insight into his offending.

Weighing all these factors, Haesler SC DCJ concluded that imprisonment in 2019 for offences committed in 2012 by an 18-year-old was not the appropriate outcome in this particular case. A substantial community service requirement, imposed as part of a community correction order, was identified as the better resolution, consistent with the principle that sentences should not have the effect of turning a first offender toward a criminal way of life.

Orders Made

  • Count 1 (first complainant): Convicted. Community correction order for 2 years 6 months, with an additional condition of 125 hours of community service work and supervision by Community Corrections for as long as required.
  • Count 2 (second complainant): Convicted. Community correction order for 3 years, with an additional condition of 175 hours of community service work and supervision by Community Corrections for as long as required.
  • Form 1: Taken into account.

Key Takeaways

  • A sentencing court retains discretion to impose a non-custodial sentence for s 66C(3) offences where the combination of the offender's youth and immaturity at the time of offending, demonstrated rehabilitation, and significant delay together justify that outcome, notwithstanding the inherent seriousness of the offending.
  • Under the High Court's approach in CTM v The Queen, adolescent sexual offending is within the legislative contemplation of s 66C, and a young adult offender's reduced moral culpability is a legitimate and potentially determinative sentencing consideration.
  • Significant delay between offending and sentencing, here approximately seven years, was a relevant factor in the overall sentencing synthesis, particularly where the offender had made genuine progress toward rehabilitation during that period.
  • A late guilty plea, entered on the trial date, may still attract utilitarian value where it spares complainants from giving evidence, though the weight assigned will reflect how late the plea was entered and the anticipation complainants endured.
  • Sentencing is, as the High Court confirmed in Weininger v The Queen, a synthesis of competing factors rather than a mechanical balancing exercise; a single factor, such as rehabilitation, can be determinative in appropriate circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Amendment) Act 1924 (NSW)
- Crimes (Girls' Protection) Act 1910 (NSW)

Cases
- CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
- KT v R (2008) 182 A Crim R 571
- Markarian v The Queen (2005) 228 CLR 357
- Elliot and Blessington v R [2006] NSWCCA 305
- Hili v The Queen (2010) 242 CLR 520
- Mill v The Queen (1988) 166 CLR 59
- Barbaro v The Queen (2014) 253 CLR 58
- Thompson v R; Houlton v R (2000) 49 NSWLR 383
- Weininger v The Queen (2003) 211 CLR 629
- Nelson v R [2016] NSWCCA 130
- Dawkins v R [2018] NSWCCA 278
- Hearne v R (2001) 124 A Crim R 451
- R v GDP (1991) 53 A Crim R 112
- AJB v R (2007) 169 A Crim R 32
- Attorney General's Application No. 1 (2002) 56 NSWLR 146