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District Court 5 April 2019

R v Joel KERSHAW

[2019] NSWDC 99

Sexual offences
CRIMINAL SENTENCING SUBJECTIVE ISSUES PLEA OF GUILTY

Citation: R v Joel KERSHAW [2019] NSWDC 99
Court: District Court of New South Wales
Date: 5 April 2019
Judge: His Honour Judge G Lerve

Background

The offender, a 23-year-old man, pleaded guilty to two counts of sexual intercourse with a child under ten years of age, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The offences occurred on 3 November 2017 at a residential address in Wagga Wagga. The victim was a five-year-old girl who lived at the home; the offender had been invited there by a mutual friend and was a near-stranger to both the child and her mother.

The offending involved digital penetration and cunnilingus committed while the child was in bed and the adults were elsewhere in the house. The victim's mother discovered the offending when she heard the child cry out, and the offender was found nearby and arrested shortly afterwards. He had remained in custody from the date of his arrest.

The pleas of guilty were entered at the Wagga Wagga Local Court in November 2018 and confirmed at the sentence hearing in March 2019. The sentencing proceedings raised several contested issues, including the extent of the guilty plea discount, the relevance of the offender's low intellectual functioning, and the finding of special circumstances warranting a non-parole period below the statutory ratio.

  • Whether the 25% utilitarian guilty plea discount already encompassed the benefit of sparing the young victim from giving evidence, or whether an additional and unspecified measure of leniency was warranted on that basis
  • How the offender's low intellectual functioning (IQ of 76, placing him in the bottom 5% of the population) bore on objective and subjective aspects of the sentence
  • The assessment of objective seriousness relative to the standard non-parole period of 15 years for each offence
  • Whether special circumstances existed to justify a non-parole period below the standard one-third balance of term
  • The appropriate aggregate sentence for the two separate acts of intercourse arising from the one episode of offending

Decision

Guilty plea discount and sparing the victim. The offender's counsel relied on Siganto v The Queen (1998) to argue that, beyond the standard 25% discount, further leniency should be extended because the five-year-old victim was spared the ordeal of giving evidence. His Honour rejected this submission. Referring to the subsequent Court of Criminal Appeal decisions in R v Thomson & Houlten (2000) and R v Borkowski (2009), the court held that the 25% discount already encompasses the utilitarian aspects of the plea, including the fact that the young victim did not have to give evidence. The court accepted the plea as one factor supporting a finding of remorse, but declined to add any further unspecified leniency on top of the standard discount.

Objective seriousness and the standard non-parole period. The maximum penalty for each offence is life imprisonment, with a standard non-parole period of 15 years. The court was required to undertake the instinctive one-step synthesis using both figures as guideposts. His Honour assessed the offending as serious: the victim was almost six years old, the offences were committed in her own bed while trusted adults were nearby, and the child described the digital penetration as "hurtful." The offender's intoxication was not relied upon as a mitigating factor and was disregarded. The offender's IQ of 76 was treated as a relevant subjective consideration, informing both his moral culpability and the assessment of his prospects of rehabilitation.

Separate and aggregate sentences. His Honour indicated the sentences he would have imposed separately: eight years and three months (non-parole period of five years and three months) for the digital penetration, and seven years and six months (non-parole period of four years and eight months) for the cunnilingus. An aggregate sentence was then imposed with a non-parole period representing approximately 63% of the total term. The reduction below the standard two-thirds ratio reflected a finding of special circumstances, the reasons for which were set out in the remarks on sentence. The court recommended the offender's participation in a sex offenders' programme while in custody, having regard to his age, the nature of the offending, and the expert psychiatric evidence.

Orders Made

  • The offender was convicted of both offences.
  • An aggregate sentence of 9 years' imprisonment was imposed, with a non-parole period of 5 years and 9 months.
  • The non-parole period commenced on 3 November 2017 and expires on 2 August 2023; the balance of term on parole runs from 3 August 2023 to 2 November 2026.
  • Special circumstances were found, producing a non-parole period of approximately 63% of the total sentence.
  • The court recommended the offender be eligible for release to parole at the expiration of the non-parole period and recommended that release.
  • The court recommended the offender participate in a sex offenders' programme while in custody.
  • The reports of Dr Nielssen and Dr Blake were directed to be annexed to the warrant accompanying the offender back to custody.

Key Takeaways

  • The District Court confirmed that the standard 25% guilty plea discount under the Crimes (Sentencing Procedure) Act 1999 already accounts for the benefit of sparing a young complainant from giving evidence; no additional unspecified leniency is available on that basis under the post-Thomson & Houlten framework.
  • A finding of low intellectual functioning (IQ of 76) is a relevant subjective matter in sentencing, capable of bearing on moral culpability and rehabilitation prospects, but it does not alter the objective assessment of seriousness where intoxication was separately disavowed as a mitigating factor.
  • Where both counts carry a standard non-parole period, the sentencing court must engage in the one-step instinctive synthesis with both the maximum penalty and the standard non-parole period as principle guideposts, consistent with Muldrock v The Queen [2011] HCA 39.
  • Judicial Commission statistics drawn from a sample of only 19 cases were treated as being of limited utility, and the court applied the caution mandated by Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 when using such statistics.
  • An aggregate sentence with a non-parole period below the standard ratio is available where special circumstances are established; here, the offender's intellectual functioning and rehabilitation needs supported that finding.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Siganto v The Queen (1998) 194 CLR 656
- R v Thomson & Houlten (2000) 49 NSWLR 383
- Muldrock v The Queen [2011] HCA 39
- Hili & Jones v The Queen [2010] HCA 45
- R v Borkowski [2009] NSWCCA 102
- Brown v R [2014] NSWCCA 215
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v AA [2017] NSWCCA 84
- Aslan v R [2014] NSWCCA 114
- R v BA [2014] NSWCCA 148
- Cahyadi v R [2007] NSWCCA
- Chamseddine v R [2017] NSWCCA 176
- R v CTG [2017] NSWCCA 163
- Jodeh v R [2011] NSWCCA 194
- Jolly v R [2013] NSWCCA 76
- Jonson v R [2016] NSWCCA 286
- Locke v R (2010) 207 A Crim R 34
- MLP v R (2006) 164 A Crim R 93
- Mills v R [2017] NSWCCA 87
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