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District Court 27 September 2019

R v Carr (a pseudonym)

[2019] NSWDC 805

Sexual offences
SENTENCING INDECENT ASSAULT RELEVANT FACTORS ON SENTENCE LATE GUILTY PLEA DELAY IN COMPLAINT REPRESENTATIVE COUNTS

Citation: R v Carr (a pseudonym) [2019] NSWDC 805
Court: District Court of New South Wales
Date: 27 September 2019
Judge(s): Haesler SC DCJ

Background

The offender (referred to by the pseudonym "Stephen Carr") pleaded guilty to seven counts of serious sexual offending against his daughter, referred to as "Emma," who was aged 11 or 12 at the time of the offending in 2000. The offences included aggravated indecent assault, inciting acts of indecency, and attempted sexual intercourse. Four further serious matters were placed on a Form 1 to be taken into account on sentence for count 6. (A Form 1 is a mechanism under NSW sentencing law by which additional offences are acknowledged and factored into a sentence without separate convictions being recorded for them.)

The offending occurred over several months while Emma's mother worked night shifts. The offender used the pretext of sex education, coinciding with Emma's school-based classes being withheld, to initiate contact that escalated in seriousness. Emma was threatened that disclosure would cause trouble for the family, which suppressed her complaint at the time.

Emma did not report the offending until 2016, when she was 27 years old. The delay followed a disclosure by the offender in 2011 that his own stepfather had abused him in a similar way, which triggered flashbacks and ultimately led Emma to tell her husband and then the police. Lawfully intercepted telephone conversations in 2018 captured admissions and apologies from the offender. He was arrested in November 2018, granted bail, and entered guilty pleas in July 2019 after a fresh indictment was filed.

  • What were the appropriate indicative sentences for each of the seven counts, having regard to objective seriousness, the offender's personal circumstances, and the guilty pleas?
  • What discount should apply for the guilty pleas, given their timing?
  • How should the principles of accumulation, concurrence, and totality be applied to produce a just overall sentence?
  • Should special circumstances be found to justify a non-parole period that departs from the standard one-third ratio?
  • What weight should be given to the offender's own history of childhood abuse, delay in complaint and prosecution, expressions of remorse, and the impact of imprisonment on his family?
  • How should the court treat the Victim Impact Statement and the application of section 25AA of the Crimes (Sentencing Procedure) Act 1999?

Decision

His Honour found that the offending was serious, involving a sustained course of conduct by a parent against a young child in a position of complete vulnerability and dependence. The offender held a position of authority and trust, and the offending escalated from indecent exposure and touching to attempted penetration. The court acknowledged that the counts and Form 1 matters represented a fair sample of a broader pattern of abuse.

The offender's guilty pleas attracted a 10% discount, reflecting their late timing (entered shortly before a listed trial date) rather than the larger discount available for early pleas. The court weighed genuine remorse, evidenced by unprompted apologies to Emma over many years before his arrest, as a mitigating factor. The court also engaged carefully with the offender's own history of serious childhood deprivation and sexual abuse, following the principles in Bugmy v The Queen [2013] HCA 37, which require such a history to be given real weight in mitigation without excusing the conduct.

Special circumstances were found, warranting a non-parole period longer in proportion to the balance of the sentence than the standard ratio. The court identified the offender's complex personal history, the need for rehabilitation and supervision on release, and the likely impact of a lengthy first period of imprisonment as justifying that departure. Applying the totality principle, the court structured the accumulation of individual sentences to produce an aggregate term that was just and proportionate rather than simply additive.

The court acknowledged the profound harm to Emma, considered her Victim Impact Statement, and noted that no sentence could fully reflect the damage done. The sentence was framed around the purposes of retribution, general deterrence, specific deterrence, and denunciation, with particular emphasis on the court's obligation to vindicate the dignity of children who are victims of parental sexual abuse.

Orders Made

  • Count 1 (aggravated indecent assault): 11 months
  • Count 2 (incite aggravated act of indecency): 1 year and 4 months
  • Count 3 (aggravated indecent assault): 1 year and 4 months
  • Count 4 (incite aggravated act of indecency): 11 months
  • Count 5 (aggravated indecent assault): 2 years and 8 months
  • Count 6 (attempted sexual intercourse, including Form 1 matters): 4 years and 11 months
  • Count 7 (attempted sexual intercourse): 4 years
  • Total aggregate sentence: 8 years and 6 months
  • Non-parole period: 5 years and 6 months, commencing 26 September 2019 and expiring 25 March 2025
  • Balance of sentence: 3 years, commencing on expiration of non-parole period
  • Total sentence expires: 25 March 2028

Key Takeaways

  • A guilty plea entered shortly before a listed trial date attracts only a modest discount (here 10%) under NSW sentencing law, reflecting the limited utilitarian value to the criminal justice system at that late stage.

  • Under the principles affirmed in Bugmy v The Queen, an offender's own history of serious childhood deprivation and abuse must be given genuine mitigating weight at sentencing, even for grave offending, without operating as an excuse for that conduct.

  • Where a sustained course of child sexual abuse is prosecuted by way of representative counts and Form 1 matters, the sentencing court proceeds on the basis that the counts fairly represent a broader pattern, and sentences only for the matters formally before it.

  • Special circumstances justifying a departure from the standard non-parole period ratio can be established where the offender faces a first term of imprisonment, has complex rehabilitative needs, and will require structured supervision upon release.

  • In applying the totality principle to multiple serious counts, the District Court structured accumulation so that the aggregate sentence reflected the overall criminality without producing a result that was crushing or unjust, consistent with authorities including Postiglione v The Queen and The Queen v Pham.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61O(1), 66C(2), 66C(3), 66D
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- The Queen v Pham [2015] HCA 39
- Postiglione v The Queen (1997) 189 CLR 295
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Ryan v The Queen (2001) 206 CLR 267
- Weininger v The Queen (2003) 212 CLR 629
- DPP v De La Rosa [2010] NSWCCA 111
- MPB v R [2013] NSWCCA 213
- AJB v R (2007) 169 A Crim R 32
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497
- R v MJR (2002) 54 NSWLR 368
- R v Todd [1982] 2 NSWLR 517
- R v Engert (1995) 84 A Crim R 67
- Thompson (2000) 49 NSWLR 383
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- Grube v R [2005] NSWCCA 140
- Wright v R [2008] N