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District Court 7 November 2019

R v Walkerden

[2019] NSWDC 881

Sexual offences
SENTENCING INDECENT ASSAULT OF A CHILD SEXUAL INTERCOURSE WITH A CHILD MULTIPLE VICTIMS SENTENCING RELEVANT FACTORS ON SENTENCE CHILD VICTIMS

Citation: R v Walkerden [2019] NSWDC 881
Court: District Court of New South Wales
Date: 7 November 2019
Judge: Haesler DC DCJ

Background

The offender pleaded guilty to two serious sexual offences against children committed in the late 1990s near Wollongong. He had been trusted as an unpaid babysitter by the mothers of both victims, pseudonymously referred to as Michelle and Andrew. The offences were reported at different times but were prosecuted together.

The offender has an intellectual disability assessed as falling in the borderline range, meaning a lasting condition at the lower end of the disability spectrum rather than a comparison against the general population. Despite this condition, the court accepted he is capable of functioning in the community with appropriate support.

Each guilty plea was accompanied by a request that the court take into account additional related conduct involving each victim under a Form 1 procedure (a mechanism under the Crimes (Sentencing Procedure) Act 1999 allowing other offences to be considered at sentencing without separate conviction).

  • What were the applicable maximum penalties, given the offences occurred in the late 1990s and predated subsequent increases?
  • How should the objective seriousness of indecent assault of a child and sexual intercourse with a child aged between 10 and 16 be assessed across two separate victims?
  • What weight should be given to the offender's intellectual disability as a mitigating factor, particularly against the need for general and specific deterrence and denunciation?
  • How should the guilty plea discount and a finding of special circumstances affect the structure of the aggregate sentence?
  • How should the Form 1 matters, and the victim impact evidence, inform the overall sentencing exercise?

Decision

His Honour applied the maximum penalties in force at the time of the offences: seven years for aggravated indecent assault of a child under 16 (s 61M, Crimes Act 1900) and eight years for sexual intercourse with a person aged between 10 and 16 (s 66C(1), Crimes Act 1900). Although current maximum penalties are higher, the court was bound to apply the law as it stood when the offences were committed.

In assessing objective seriousness, the court applied a multi-factor framework covering the circumstances and location of the offending, the degree of physical contact, the ages of the victims, the age gap between offender and victims, the relationship of trust, the duration of each act, and any harm caused. For the offence involving Michelle, the court noted she was very young, the offending occurred in her home, there was direct genital contact, and it occurred within a context of trust. For the offence involving Andrew, the court found the offender had exploited the prior babysitting relationship, engaged in grooming conduct, and subjected the child to an act of oral intercourse lasting approximately three minutes, involving the offender holding the child's head.

The offender's borderline intellectual disability was accepted as a genuine and significant mitigating factor. The court acknowledged that intellectual disability reduces the weight ordinarily given to general deterrence, but emphasised that the community still expects such offending to attract serious punishment, and that sentences must reflect community abhorrence of child sexual abuse and vindicate the dignity of victims. The court moderated the sentence in light of the disability while maintaining that the purposes of punishment, denunciation, and protection of children remained relevant.

A 15% discount was applied for the utilitarian value of the guilty plea. The court found special circumstances warranting a departure from the standard non-parole period ratio, reflecting the offender's need for structured supervision on release given his disability and vulnerability. An aggregate sentence was imposed.

Orders Made

  • Indicated sentence for aggravated indecent assault of Michelle (s 61M(1), Crimes Act): 1 year and 8 months.
  • Indicated sentence for sexual intercourse with Andrew: 2 years and 6 months.
  • Both indicated sentences reduced by 15% for the utilitarian value of the guilty plea.
  • Aggregate sentence of 3 years imprisonment, commencing 7 November 2019.
  • Non-parole period of 1 year and 6 months, expiring 6 May 2021.
  • Balance of sentence: 1 year and 6 months; parole commencing 7 May 2021.
  • Total sentence expiring 6 November 2022.
  • Form 1 matters taken into account for each victim.
  • Report of Ms Godbee to accompany the warrant; Community Corrections to be advised that the offender is a vulnerable person.

Key Takeaways

  • Where sexual offences against children were committed before subsequent amendments increased maximum penalties, the sentencing court is required to apply the lower maximums in force at the time of offending.
  • Intellectual disability in the borderline range constitutes a genuine mitigating factor that can reduce the weight attributed to general deterrence, but it does not displace the sentencing objectives of denunciation, specific deterrence, and community protection, particularly in cases of child sexual abuse.
  • A multi-factor framework governs the assessment of objective seriousness for child sexual offences, with no rigid hierarchy between different types of sexual acts; factors including the victim's age, the relationship of trust, the degree of physical intrusion, and the presence of grooming all bear on the assessment.
  • Special circumstances findings, warranting an extended parole period relative to the non-parole period, may be appropriate where an intellectually disabled offender requires structured community supervision on release.
  • The absence of a victim impact statement does not mitigate sentence, and courts may have regard to the well-documented range of impacts that child sexual abuse can cause, including individualised short and long-term physical and psychological harm.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66C(1), 80AF
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33
- Children (Criminal Proceedings) Act (NSW), s 15A

Cases
- AJB v R (2007) 169 A Crim R 32
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Kutchera v R [2007] NSWCCA 121
- Markarian v The Queen [2005] HCA 5; (2005) 228 CLR 357
- MJR v R (2002) 54 NSWLR 368
- Postiglione v The Queen (1997) 189 CLR 295
- Wright v R [2008] NSWCCA 91