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District Court 4 October 2019

R v Brown

[2019] NSWDC 845

Sexual offences
SENTENCING RELEVANT FACTORS ON SENTENCE CHILD SEXUAL ASSAULT MULTIPLE VICTIMS DELAY VICTIM IMPACT

Citation: R v Brown [2019] NSWDC 845
Court: District Court of New South Wales
Date: 4 October 2019
Judge(s): Haesler SC DCJ

Background

The offender was employed as a youth worker at a community centre in the Wollongong area in 1986 and 1987. During that period he committed sexual offences against a number of young boys. Two complainants had come forward at the time, and in October 1990 the offender was sentenced for those earlier offences, receiving a good behaviour bond and 18 months periodic detention.

In 2017, two brothers came forward to report that the offender had also sexually assaulted them during the same period. One brother was 16 years old at the time of the offending; the other was only 13. Both had been in vulnerable circumstances, with problems at home, histories of alcohol use, and in one case homelessness. The offender had exploited his position as a youth worker and, in one instance, used a pretext involving a fabricated university study to isolate and offend against a victim.

When the offender was arrested in January 2018, police also found a USB stick containing child abuse material at his home. He ultimately pleaded guilty to five counts across two indictments relating to the two brothers, as well as the child abuse material offence.

  • What sentence was appropriate for multiple historic child sexual offences committed in 1986 and 1987, having regard to the maximum penalties in force at the time of the offending?
  • How should modern sentencing patterns and practices, which are more severe than those applicable in 1990, be applied consistently with the statutory requirement to use contemporary sentencing norms while being guided by the historic maximum penalties?
  • What weight should be given to mitigating factors including the offender's age, ill health (cardiac condition), his own history of childhood abuse, and the significant delay between offending and prosecution?
  • What discount was appropriate for guilty pleas entered at different stages: one in the Local Court (child abuse material) and others very late in the District Court proceedings?
  • Whether special circumstances existed to justify departing from the standard ratio between the non-parole period and the overall sentence.

Decision

Objective seriousness and application of maximum penalties

Haesler SC DCJ assessed the objective seriousness of each offence by reference to factors including the ages and vulnerability of the victims, the nature and degree of physical contact, the existence of planning and premeditation, the offender's exploitation of his position of trust as a youth worker, and the circumstances in which the offending occurred. The offences against JD were treated as particularly serious because the offender deliberately isolated a vulnerable 16-year-old, supplied him with alcohol, and offended against him when he was incapacitated and incapable of resistance. The offences against PD, who was only 13 and homeless, were also serious given his extreme vulnerability.

The Court was required, under s 25A(c) of the Crimes (Sentencing Procedure) Act 1999, to sentence in accordance with sentencing patterns and practices that apply today rather than those current at the time of the offending. However, the maximum penalties in force at the time of the offences remained the controlling upper limit. Haesler SC DCJ noted that contemporary sentencing is significantly more severe for this type of offending, reflecting greater judicial and community recognition of the long-term psychological harm caused to victims and increased maximum penalties introduced since the offending occurred.

Guilty plea discounts

The guilty plea to the child abuse material charge, entered in the Local Court, attracted a 25% discount. The guilty pleas to the remaining counts came very late, on the eve of trial. Haesler SC DCJ allowed a 10% reduction for those pleas on the basis that they avoided the need for trial, jury empanelment, and the testing of the victims' accounts in cross-examination.

Mitigating factors and special circumstances

The Court considered several mitigating factors, including the offender's age and ill health (he had recently required an urgent coronary angiogram), his own history of being abused as a child, the significant delay between the offending and the proceedings, and his prior sentence for related offending. Haesler SC DCJ found that special circumstances existed, justifying a significant departure from the standard non-parole period ratio, primarily to allow for adequate supervised parole given the offender's health and rehabilitation needs.

Orders Made

  • JD count 1 (assault and commit act of indecency, s 61E(1)): 1 year and 1 month
  • JD count 2 (sexual intercourse without consent, s 61D(1)): 2 years and 8 months
  • PD count 1 (assault and commit act of indecency, s 61E(1)): 1 year and 6 months
  • PD count 2 (assault and commit act of indecency, s 61E(1)): 9 months
  • Possess child abuse material (s 91H): 9 months
  • Aggregate sentence: 3 years and 6 months, commencing 29 September 2019
  • Non-parole period: 1 year and 10 months, commencing 29 September 2019; eligible for parole from 28 July 2021
  • Parole period: 1 year and 8 months (reflecting a significant finding of special circumstances)

Key Takeaways

  • Under s 25A(c) of the Crimes (Sentencing Procedure) Act 1999, a court sentencing for historic sexual offences must apply contemporary sentencing patterns and practices, but remains bound by the maximum penalties that applied at the time of the offending as the controlling upper limit.

  • Sentencing courts must give content to maximum penalties as a guide to the exercise of sentencing discretion, balancing them against all other relevant factors including the objective seriousness of the individual conduct, the age and vulnerability of victims, and the offender's personal circumstances.

  • A late guilty plea that avoids the need for trial and spares victims from having their accounts tested in cross-examination may warrant some discount, even if entered on the eve of proceedings; here, 10% was allowed for the late pleas, compared to 25% for the early plea in the Local Court.

  • The District Court confirmed that possession of child abuse material is treated as a serious offence in its own right, as such material cannot come into existence without the exploitation and abuse of children, even where the offender played no direct role in its creation.

  • Special circumstances justifying a departure from the standard non-parole period ratio can be established where factors such as the offender's significant health needs and rehabilitation requirements warrant a longer period of supervised parole.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D, 61E, 91H
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 25A(c), 25AA

Cases
- R v MJR (2002) 54 NSWLR 368
- Minehan [2010] NSWCCA 140
- R v Booth [2009] NSWCCA 89
- R v Todd [1982] 2 NSWLR 517
- R v Gannon (unreported, 19 August 1984, NSWCCA)
- R v Burrell (2000) 114 A Crim R 207
- R v Sellen (1991) 57 A Crim R 313