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District Court 1 November 2019

R v CF

[2019] NSWDC 903

Sexual offences
CRIME SENTENCE MULTIPLE HEALTH ISSUES DETERIORATION IN COGNITIVE FUNCTION

Citation: R v CF [2019] NSWDC 903
Court: District Court of New South Wales
Date: 1 November 2019
Judge(s): Norrish QC DCJ

Background

The prisoner appeared for sentence on multiple offences committed between late December 2016 and early April 2017, when he was arrested and taken into custody. The charges included six counts of sexual intercourse with a person aged 14 years or above but under 16 years, two counts of indecent assault of a person under 16 years, and one count of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000. Nine additional offences were placed on two Forms 1 (a mechanism allowing related offences to be formally acknowledged and taken into account without separate conviction at sentencing).

The prisoner had a lengthy criminal history of child sexual assault offences. He had been convicted in 1998 of 24 such offences, served 12 years in custody, and was subsequently subject to an Extended Supervision Order made by the Supreme Court between 2009 and 2016. As a registered offender under the Child Protection Act, he was obliged to report any contact with children under 18 years, an obligation he had acknowledged in writing on multiple occasions.

The primary victim of the sexual intercourse offences was 15 years old at the time. The victims of the indecent assault offences were a 14-year-old male and a 15-year-old male. The reporting obligation breaches related to contact with those individuals and others, including additional young people named in the Form 1 matters.

  • What discount for guilty pleas was appropriate, given the utilitarian benefit of saving complainants from giving evidence and the circumstances of the committal from the Local Court?
  • How should the aggregate sentence be structured across multiple offences of differing types and maximum penalties?
  • What weight should be given to the prisoner's extensive prior history of like offending, his psychological profile, his expressed resentment of supervision conditions, and his multiple health issues, including deteriorating cognitive function?
  • How should the principles in Pearce v R and Mill v R apply to the totality and accumulation of sentences?

Decision

The District Court applied a 25% discount to each sentence to reflect the utilitarian value of the guilty pleas. The court noted that the prisoner had saved multiple complainants from giving evidence, and that although there was a delay of approximately 15 months between arrest and committal, additional charges had been laid in September 2017, after the initial arrest in April 2017. The discount accorded with both the parties' submissions and the guideline judgment in Thomson and Houlton v R.

On objective seriousness, the court found that the prisoner's conduct was calculated and deliberate. Drawing on the report of forensic psychiatrist Dr Olav Nielssen, who had assessed the prisoner intermittently over 13 to 14 years, the court noted the prisoner's longstanding and specific attraction to teenage boys and his resentment of the restrictions placed upon him. The court expressly declined to sentence on the basis of diagnostic labels, emphasising that the relevant consideration was the facts of the criminal conduct rather than any clinical categorisation.

The court acknowledged the prisoner's multiple health issues and deteriorating cognitive function as mitigating factors but found they did not outweigh the gravity of the offending or the significant weight to be given to his criminal history. The failure to comply with reporting conditions was treated as a serious aggravating matter, given that those obligations existed precisely because of the prisoner's prior offending.

Applying the totality principle, the court imposed an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999, taking care to ensure the overall term was proportionate to the totality of the criminality without being crushing.

Orders Made

  • The prisoner was convicted of all offences to which he had been committed for sentence.
  • An aggregate term of imprisonment of 10 years was imposed, commencing 5 April 2017 and expiring 4 April 2027.
  • An aggregate non-parole period of 7 years and 6 months was fixed, expiring 4 October 2024.
  • Indicative sentences were imposed as follows:
  • Sequence 1 (sexual intercourse offence): 3 years
  • Sequence 3 (sexual intercourse offence, 5 Form 1 matters taken into account): 5 years
  • Sequence 4 (sexual intercourse offence): 3 years
  • Sequence 6 (sexual intercourse offence): 4 years
  • Sequence 9 (sexual intercourse offence): 4 years
  • Sequence 10 (sexual intercourse offence): 3 years 6 months
  • Sequence 12 (failure to comply with reporting conditions, 4 Form 1 matters taken into account): 3 years
  • Sequence 4 under second indictment number (indecent assault, person under 16): 2 years, non-parole period of 18 months
  • Sequence 6 under second indictment number (indecent assault): 2 years 6 months, non-parole period of 1 year 9 months

Key Takeaways

  • The District Court applied a 25% guilty plea discount where pleas were entered by committal from the Local Court and multiple complainants were spared from giving evidence, consistent with Thomson and Houlton v R.
  • Under section 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence may be imposed across multiple offences of different types; indicative sentences must still be stated for each constituent offence.
  • A prisoner's failure to comply with child protection reporting obligations carries heightened seriousness where those obligations arose directly from a prior history of sexual offending against children.
  • Sentencing courts are not required to, and in this case expressly declined to, characterise offenders by clinical or colloquial labels; the facts of the criminal conduct, not diagnostic classifications, are the relevant sentencing considerations.
  • Deteriorating cognitive function and other health issues may be acknowledged as mitigating factors, but their weight can be substantially diminished by a lengthy prior history of like offending and evidence of deliberate, calculated conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(3)
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Thomson and Houlton v R [2000] NSWCCA 309
- Pearce v R (1998) 194 CLR 610
- Mill v R (1988) 166 CLR 59
- Attorney-General's Application (No 1) (2002) 56 NSWLR 147
- R v ABS [2005] NSWCCA 255
- R v Archer [2017] NSWCCA 155
- R v Chong [2012] NSWSC 1309
- R v De La Rosa [2010] NSWCCA 194
- R v Hammoud (2000) 118 A Crim R 66
- R v Holder [1983] 3 NSWLR 245
- R v Jomaa [2019] NSWCCA 98
- R v Porter [2008] NSWCCA 145
- R v XX (2009) 195 A Crim R 38