AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
District Court 6 November 2019

R v PW

[2019] NSWDC 963

Sexual offences
>10 <14

Citation: R v PW [2019] NSWDC 963
Court: District Court of New South Wales
Date: 6 November 2019
Judge: Tupman DCJ

Background

The offender, PW, was a 73-year-old man sentenced following guilty pleas entered on the first day of trial. His offending spanned several decades, from as early as 1976 through to approximately 2003. The offences covered three separate indictments and involved two complainants: his step-grandson (who was aged between approximately two or three and twelve during the relevant period) and his daughter.

The charges included aggravated sexual intercourse with children under 10, under 14, and under 16; multiple counts of indecent assault; production and possession of child abuse material; and two counts of bestiality involving a family dog and a neighbour's dog. In total, the offender faced 31 substantive charges across the three indictments, with a further four offences to be taken into account on Form 1 documents. The offender had been held in custody on a bail refused basis since 16 June 2016.

Because the guilty pleas were entered on the first day of trial, rather than at an earlier opportunity, the utilitarian discount available to the offender was limited. The Crown submitted, and the court accepted, that a 10% discount was appropriate.

  • What sentencing patterns and practices apply to historical child sexual offences, given the operation of s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • Whether the maximum penalties applicable at the time of the offending, rather than current maxima, remain the relevant yardstick?
  • What discount should apply for guilty pleas entered on the first day of trial?
  • How should an aggregate sentence be constructed across multiple indictments to reflect totality while accounting for the overall criminality?
  • Whether any special circumstances existed justifying a departure from the standard non-parole period ratio?

Decision

Section 25AA and current sentencing patterns. The court applied s 25AA of the Crimes (Sentencing Procedure) Act 1999, which requires sentencing courts to apply the sentencing patterns and practices current at the time of sentencing, not those that prevailed when the offences were committed. Tupman DCJ noted that sentencing standards for these types of offences have changed significantly. At the time many of the offences were committed, terms of imprisonment were not always imposed for indecent assault; under current practices, full-time custody is the likely outcome wherever the s 5 imprisonment threshold is crossed, because the legislature has removed Intensive Corrections Orders as an available sentence for child sexual offences.

Maximum penalties. The court was careful to clarify that applying current sentencing patterns does not alter the applicable maximum penalties, which remain those in force at the time of the offending. The maximum penalties continue to serve as a yardstick or indicator of the appropriate sentence, as they do in any sentencing exercise.

Subjective matters and special circumstances. PW was 73 years old at the time of sentence, had been in custody since June 2016, and had significant health concerns. The court received and partially accepted a forensic psychiatric report, though it rejected portions that it regarded as reflecting a manipulative character. The court found a limited basis for a finding of special circumstances, grounded in the offender's age, frailty, and the way he would experience imprisonment, as well as the partial accumulation of sentences across indictments.

Aggregate sentencing and totality. The court imposed aggregate sentences under s 53A across each indictment, with indicative sentences recorded for each count. Full accumulation across the three indictments would have produced a total sentence of 25 years and 6 months. Applying the totality principle, the court reduced the overall sentence to 22 years imprisonment with a non-parole period of 16 years.

Orders Made

  • Indictment 3 (bestiality): Count 1: 12 months imprisonment commencing 16 June 2016, expiring 15 June 2017. Count 2: 18 months imprisonment commencing 16 June 2017, expiring 15 December 2017. No separate non-parole period fixed.
  • Indictment 2 (offences against the offender's daughter): Aggregate sentence of 4 years pursuant to s 53A, commencing 16 June 2017, expiring 15 June 2021. Indicative sentences: Count 1, 18 months; Count 2, 2 years and 9 months.
  • Indictment 1 (offences against the step-grandson): Aggregate sentence pursuant to s 53A of 20 years imprisonment commencing 16 June 2018, expiring 15 June 2038. Aggregate non-parole period of 14 years, commencing 16 June 2018, expiring 15 June 2032. Parole period of 6 years commencing 16 June 2032, expiring 15 June 2038.
  • Overall sentence: 22 years imprisonment with an overall non-parole period of 16 years.

Key Takeaways

  • Section 25AA of the Crimes (Sentencing Procedure) Act 1999 requires courts to sentence for historical child sexual offences in accordance with current sentencing patterns and practices, even where the conduct predates modern standards by decades.
  • Under current sentencing patterns, full-time imprisonment is the expected outcome for child sexual offences once the s 5 threshold is met, as Intensive Corrections Orders are no longer available for this category of offence.
  • Applying current sentencing patterns does not increase the maximum penalty: the maxima in force at the time of the offending continue to function as the sentencing yardstick.
  • A guilty plea entered on the first day of trial attracts only a modest utilitarian discount; the District Court accepted 10% as appropriate in these circumstances, consistent with the late and limited utilitarian value of the plea.
  • Special circumstances sufficient to reduce the non-parole period ratio may be established by reference to the offender's advanced age, poor health, and the partial accumulation of sentences across multiple indictments, though such findings remain highly fact-specific.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61E(1A), 61E(2), 61M(2), 66A, 66C(2), 76A, 79, 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 5, 10, 12, 25AA, 53A

Cases:
- Clarkson v R [2011] VSCA 157
- R v Gavel [2014] NSWCCA 56