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District Court 24 October 2019

R v Knott

[2019] NSWDC 839

Sexual offences
CRIMINAL SENTENCE SIGNIFICANT OVERLAP BETWEEN OFFENCES DEGREE OF ACCUMULATION DETERRENCE SUBJECTIVE MATTERS

Citation: R v Knott [2019] NSWDC 839
Court: District Court of New South Wales
Date: 24 October 2019
Judge: King SC DCJ

Background

The offender, a 40-year-old man, met a 13-year-old girl while both were associated with a pub in regional New South Wales in early 2018. Over several months, he cultivated a close relationship with her, eventually developing what he described as a romantic relationship. The complainant came to trust the offender deeply, isolated herself from family, and regularly visited him late at night.

Between July and September 2018, the offending escalated. The offender encouraged the complainant to send him explicit photographs and videos via messaging apps, exchanged sexual content with her, and had penile-vaginal intercourse with her on three separate occasions at motels in Albury. He photographed some of these encounters on his mobile phone, then deleted the images. Police discovered printed photographs and a handwritten note that ultimately led to his arrest.

The offender appeared for sentence on five charges: grooming a child under 14 for unlawful sexual activity, using a child under 14 to make child abuse material, and three counts of sexual intercourse with a child aged between 10 and 14 years. He pleaded guilty at the earliest opportunity.

  • What sentences were appropriate for each of the five offences, having regard to the standard non-parole periods and the maximum penalties prescribed by the Crimes Act 1900?
  • To what extent should sentences be accumulated (served consecutively) rather than concurrently, given the overlapping nature of the conduct?
  • Did the principle of totality require moderation of the combined sentence?
  • Was a 25% discount for an early guilty plea warranted?
  • Did special circumstances exist to justify a longer-than-standard parole period?

Decision

King SC DCJ accepted that the offender was entitled to a 25% discount on his sentence for the utility of his early guilty plea, consistent with the approach in R v Thomson; R v Houlton. The court identified the grooming as the foundation of the entire course of offending: the offender deliberately cultivated the complainant's trust, exploited her vulnerabilities, and used digital technology to encourage her to produce explicit material. The role of mobile phones and messaging platforms in facilitating both the production and transmission of child abuse material was treated as a significant feature of the offending.

The court assigned indicative sentences to each offence individually. For grooming (Sequence 3), the indicative sentence was two years and ten months, with a non-parole period of two years and one month. For using a child to make child abuse material (Sequence 5), the indicative sentence was three years, with a non-parole period of two years and three months. For each of the three counts of sexual intercourse (Sequences 18, 19, and 20), the indicative sentence was six years, with a non-parole period of four years and six months.

The court acknowledged that while some accumulation was necessary to reflect the distinct nature of each offence, there was significant overlap in the overall conduct. Applying the totality principle, the court determined that a single aggregate non-parole period of six years was appropriate, rather than simply adding each sentence together.

The court declined to find special circumstances justifying a departure from the standard ratio between the non-parole period and the balance of term. It considered the two-year parole period substantial in itself and noted that time in custody would allow the offender to undertake relevant rehabilitative programs.

Orders Made

  • Aggregate sentence of imprisonment with a non-parole period of six years, commencing 20 October 2018 and expiring 19 October 2024.
  • Balance of term of two years, with the total sentence expiring 19 October 2026.
  • No finding of special circumstances.
  • 25% discount applied for the early guilty plea.

Key Takeaways

  • The District Court treated the grooming conduct as the foundation of a broader course of sexual offending, with the production and transmission of child abuse material via mobile phones identified as an aggravating feature.
  • Where multiple offences arise from overlapping conduct, the totality principle requires the court to moderate the combined sentence so that the aggregate does not become crushing or disproportionate to the overall criminality.
  • A 25% discount for an early guilty plea applied consistently with R v Thomson; R v Houlton, reflecting the utility of the plea in avoiding a contested hearing.
  • Indicative sentences must still be stated individually for each offence even where the court imposes a single aggregate sentence, so that the relationship between each component and the whole remains transparent.
  • Declining to find special circumstances, the court held that a two-year parole period was adequate supervision and that time in custody would provide access to relevant programs without requiring an extended balance of term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 66C(1), 66EB(3), 91G(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Thomson; R v Houlton (2000) NSWLR 383
- Callaghan v The Queen [2006] NSWCCA 58
- Clarkson v The Queen; EJA v The Queen [2011] 32 VR 361
- Minehan v The Queen (2010) 201 A Crim R 243
- R v Fernando [2002] NSWCCA 28
- R v Huynh [2003] NSWCCA 239
- R v McVittie [2002] NSWCCA 344
- R v Moffitt (1990) 20 NSWLR 114
- R v Nelson [2016] NSWCCA 130