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District Court 26 July 2019

R v Tuckfield

[2019] NSWDC 954

Sexual offencesAssault & violence
CRIME SENTENCE S66(4) FORM 1 OFFENCE

Citation: R v Tuckfield [2019] NSWDC 954
Court: District Court of New South Wales
Date: 26 July 2019
Judge: Wilson SC DCJ

Background

The offender, a 32-year-old man, pleaded guilty to a charge of aggravated sexual intercourse with a person aged between 14 and 16 years, contrary to section 66C(4) of the Crimes Act 1900 (NSW). The aggravating circumstance was that the 14-year-old victim was under the influence of alcohol at the time of the offence.

The offending occurred on 23 January 2018 at Terrigal Lagoon on the Central Coast. Over the course of the afternoon and evening, the offender and his friend provided the victim with significant quantities of alcohol, including high-strength bourbon and cola cans and vodka cruisers. The offender was aware from conversation at the outset that the victim was 14 years old. While the victim was heavily intoxicated and seated in the offender's car, the offender penetrated her without consent. The victim told him to stop and physically pushed him away before fleeing.

A Form 1 matter was also before the court: a charge of assault occasioning actual bodily harm, arising from the offender extinguishing a lit cigarette on the victim's thigh during the same incident. The victim did not feel pain at the time due to her level of intoxication, but experienced pain once sober. The Form 1 offence was taken into account in sentencing on the principal charge.

  • What sentence was appropriate for the principal offence under section 66C(4), given the maximum penalty of 12 years imprisonment and a standard non-parole period of 5 years?
  • How should the Form 1 assault matter affect the overall penalty?
  • What discount, if any, was warranted for the late guilty plea?
  • Whether the standard non-parole period should be applied, or whether the circumstances justified a departure from it?
  • How the offender's personal circumstances, including any conditions relevant to rehabilitation, should affect the balance between non-parole period and head sentence?

Decision

His Honour assessed the objective seriousness of the offending. The victim was 14 years old and heavily intoxicated, having been supplied with alcohol by the offender himself despite his knowledge of her age. The offending was a serious breach of trust, accompanied by violence in the form of the cigarette burn. These features elevated the objective gravity of the conduct.

The court considered the sentencing principles established in cases such as Markarian v The Queen [2005] HCA 25, noting that the sentencing process is intuitive rather than arithmetical. While the standard non-parole period of 5 years serves as a legislative benchmark for mid-range offending, the court is not required to apply it mechanically. His Honour found that a departure from the standard non-parole period was warranted in the circumstances.

Two principal reasons justified the downward departure. First, the offender entered a late guilty plea, for which His Honour applied a 10% discount on the overall term. Although the plea came on the eve of trial, it still spared the victim from having to give evidence. Second, the offender suffered from a number of conditions that made an extended parole period appropriate, to allow for rehabilitation to occur in the community rather than in custody.

The Form 1 assault occasioning actual bodily harm was taken into account to reflect both deterrence and retributive objectives in the overall sentence.

Orders Made

  • The offender was convicted of aggravated sexual intercourse with a person aged between 14 and 16 years, contrary to section 66C(4) of the Crimes Act 1900 (NSW).
  • A sentence of imprisonment was imposed with a non-parole period of 3 years commencing 27 April 2018 and a head sentence of 4 years and 6 months.
  • The offender became eligible for release on parole on 26 April 2021.
  • The sentence incorporated a 10% reduction reflecting the value of the guilty plea.
  • The Form 1 charge of assault occasioning actual bodily harm was taken into account in determining the overall penalty.

Key Takeaways

  • Under section 66C(4) of the Crimes Act 1900 (NSW), supplying alcohol to a child and then having sexual intercourse with that child while she is intoxicated constitutes aggravated sexual intercourse, carrying a maximum of 12 years imprisonment and a standard non-parole period of 5 years.
  • The District Court confirmed, following Markarian, that sentencing is an intuitive synthesis rather than a mathematical exercise; the standard non-parole period is a guiding benchmark and not a mandatory starting point.
  • A departure below the standard non-parole period was open where a combination of factors, including a guilty plea and the offender's rehabilitation needs, justified a longer parole period relative to the non-parole term.
  • Even a late guilty plea attracted a 10% sentencing discount where it had the practical effect of sparing the victim from giving evidence at trial.
  • Form 1 matters, such as the assault occasioning actual bodily harm arising from the cigarette burn, are taken into account to increase the principal sentence in order to reflect the community's interest in both deterrence and retribution.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 59(1), 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A

Cases
- DPP v De La Rosa [2010] NSWCCA 194
- Markarian v The Queen [2005] HCA 25
- RL v R [2018] NSWCCA 274
- Tepania v R [2018] NSWCCA 247