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District Court 29 August 2019

R v Mills

[2019] NSWDC 814

Sexual offences
CRIMINAL SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT BELATED PLEA ON TRIAL DAY DISCOUNT SUBJECTIVE MATTERS

Citation: R v Mills [2019] NSWDC 814
Court: District Court of New South Wales
Date: 29 August 2019
Judge: King SC DCJ

Background

The offender, a 55-year-old man, was sentenced for a single count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The offence occurred on 3 May 2017 at a residential unit complex in North Albury, where the offender had previously lived and worked as a handyman.

The victim attended a neighbouring unit that evening and encountered the offender. He invited her to inspect a unit he had recently vacated. Once inside the empty premises, he forcibly restrained her, pulled down her clothing, forced her to the floor, and had penile/vaginal intercourse with her without her consent. The victim verbally told him to stop. He did not respond. She eventually pushed him off and fled, reporting the incident to police that night.

The offender had been committed for trial in September 2017. He did not plead guilty to the s 61I offence (the lesser alternative count) until the day after his trial was listed to commence, 26 February 2019, following the Crown's presentation of an indictment that included the alternative count for the first time.

  • What discount, if any, applied to the offender's belated guilty plea entered on the day after trial was listed to begin
  • Where the offending fell within the range of objective seriousness for s 61I offences
  • What weight should be given to the offender's subjective circumstances, including age, prior criminal history, compliance with bail, and engagement with psychology
  • Whether special circumstances existed to justify departing from the statutory non-parole period to total sentence ratio under the Crimes (Sentencing Procedure) Act 1999

Decision

King SC DCJ accepted that the plea of guilty, though very belated, entitled the offender to a 10% discount reflecting the utilitarian value of the plea. The plea came only after the Crown included the alternative count in the indictment on the eve of trial, which explained its timing. No greater discount was available in the circumstances.

On objective seriousness, the court found the offending fell slightly below the midrange. The offence involved the use of force, the victim's explicit verbal refusal, and the offender's recklessness as to consent. Mitigating factors included the absence of significant premeditation, as the offence appeared relatively spontaneous, and no significant physical injuries were observed. The victim's impact statement was received and the court accepted the victim had suffered ongoing consequences consistent with what could ordinarily be expected from offending of this nature.

The offender's subjective case presented a mixed picture. He had prior convictions, but none had resulted in imprisonment and none were relevant to sexual offending. He had not offended at all since 2003. He had complied fully with strict bail conditions, including daily reporting and abstinence from alcohol, for over a year. He had engaged with a psychologist, though King SC DCJ noted the psychological report did not address sexual reoffending risk. The court observed it was difficult to reconcile the offending with the offender's otherwise unremarkable background.

Special circumstances were found to exist for two reasons: this was the offender's first custodial sentence at age 55, and an extended parole period was considered necessary to support treatment for his history of alcohol abuse and to provide counselling specifically directed at sexual offending. The court reduced the non-parole period significantly relative to the balance of term on that basis.

Orders Made

  • The offender was convicted of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900
  • Total sentence of four years' imprisonment imposed
  • Non-parole period of two years, commencing 23 July 2018, with first eligibility for parole on 22 July 2020
  • Balance of term of two years, with the total sentence expiring 22 July 2022

Key Takeaways

  • A guilty plea entered the day after a trial listing, following the Crown's first-time inclusion of an alternative lesser count in the indictment, attracted only a 10% discount for utilitarian value, reflecting the very belated nature of the plea.
  • Objective seriousness for a s 61I offence may fall slightly below midrange where the offending was relatively spontaneous, physical injuries were absent, and there was no significant premeditation, notwithstanding the use of force and clear non-consent.
  • Special circumstances under sentencing law were established where the sentence was the offender's first term of imprisonment at age 55 and where a longer parole period was required to facilitate treatment for both alcohol abuse and sexual offending behaviour.
  • Extended compliance with onerous bail conditions over a sustained period, including daily reporting and abstinence from alcohol, carried weight as a subjective mitigating factor.
  • The District Court noted that a psychological report tendered on sentence was of limited utility because it did not address the specific risk of sexual reoffending, implying that targeted treatment reports carry greater relevance to sentencing in this context.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent, maximum 14 years, standard non-parole period of seven years) and s 61J(1) (aggravated sexual intercourse without consent, maximum 20 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (standard non-parole period framework; s 5 threshold for full-time imprisonment; special circumstances provision)

Cases cited: None stated in the judgment.