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District Court 21 February 2020

R v Apps (a pseudonym)

[2020] NSWDC 111

Sexual offences
SENTENCING MULTIPLE SEXUAL OFFENCES OLD AND FRESH AGGREGATE SENTENCE. SENTENCING AFTER TRIAL OLD OFFENCES TWO COMPLAINANTS

Citation: R v Apps (a pseudonym) [2020] NSWDC 111
Court: District Court of New South Wales
Date: 21 February 2020
Judge: Haesler SC DCJ

Background

The offender (referred to by the pseudonym "Apps") faced sentencing on two separate matters joined for the purpose of the hearing. The first arose from a jury trial in October 2019 concerning sexual offences committed in late 2012 against two young female cousins, aged 11 and 13 at the time, whom the offender was babysitting. The jury returned guilty verdicts on six counts and acquitted on two, with the jury unable to agree on eight further counts.

The second matter involved a guilty plea to an offence committed in February 2019, when Apps, then 23, took a 15-year-old girl to an isolated location and had sexual intercourse with her in the company of his then-girlfriend. The victim's 16th birthday was five days later. Apps had been in custody since his arrest on 26 February 2019, as the 2019 offending also breached bail conditions relating to the trial matters.

Suppression orders were made at the outset, with pseudonyms used for all parties. The judgment notes that Apps was a juvenile at the time of the 2012 offences, which had implications for certain sentencing provisions, including the non-application of standard non-parole periods to those counts.

  • What is the appropriate objective seriousness of multiple child sexual offences committed in a single incident, where the offender was himself a juvenile at the time?
  • How should the court treat counts on which the offender was acquitted or on which the jury could not agree, when sentencing on the counts resulting in conviction?
  • What discount applies to the guilty plea for the 2019 offence, and does the early guilty plea scheme apply despite the plea being entered at a relatively late stage?
  • How should the principles of accumulation, concurrence, totality, and special circumstances operate to produce an appropriate aggregate sentence across the two matters?
  • What weight should be given to mitigating factors, including the offender's youth at the time of the earlier offences, delay in prosecution, and subjective circumstances, balanced against the purposes of sentencing including deterrence, retribution, and community protection?

Decision

Haesler SC DCJ approached the 2012 trial matters by confining the sentencing exercise strictly to the six counts on which the jury returned guilty verdicts. The judgment is explicit that the offender was entitled to the full benefit of his acquittals, and that the counts on which the jury disagreed could not be taken into account. The court assessed the objective seriousness of the individual offences by reference to the nature and degree of the acts, the age of the victims, the relationship of trust and the family context, the age difference between the offender and the complainants, and the fact that one victim was caused pain and distress.

Although Apps was a juvenile at the time of the 2012 offences, the court found this was a factor that reduced, but did not eliminate, the seriousness of the conduct. The court also recognised the significant delay between the offending and prosecution, and the impact of that delay on the offender's rehabilitation and current circumstances. Victim impact was considered, with some degree of psychological harm presumed at law from child sexual offending. Mitigating factors, including youth and immaturity at the time, were weighed against the need to vindicate the dignity of victims, express community disapproval, and afford protection to the vulnerable through specific and general deterrence.

For the 2019 offence, the court applied a 25 per cent discount to the sentence for the guilty plea's utilitarian value, noting the plea was accepted in full satisfaction of a more serious indictment. The court found the early guilty plea scheme under s 25D(3) of the Crimes (Sentencing Procedure) Act 1999 applied. As that offence carried a standard non-parole period of five years, the sentence was calibrated accordingly, though reduced to reflect the plea and overall circumstances.

After indicating individual sentences for each count, the court found special circumstances existed and applied the principles of accumulation, concurrence, and totality to arrive at an aggregate sentence. The court was satisfied that the combined sentence remained proportionate to the overall criminality while not being crushing in light of the offender's age and prospects.

Orders Made

  • Count 6 (aggravated sexual assault, victim under 16): indicative sentence of 4 years
  • Count 7 (aggravated sexual assault, victim under 16): indicative sentence of 3 years 9 months
  • Count 8 (indecent assault, person under 16): indicative sentence of 2 years
  • Count 13 (aggravated indecency, victim under 16, under authority): indicative sentence of 1 year
  • Count 14 (aggravated indecency, victim under 16, under authority): indicative sentence of 1 year 6 months
  • Count 15 (aggravated indecency, victim under 16, under authority): indicative sentence of 1 year
  • 2019 offence (aggravated sexual intercourse with child, in company, s 66C(4)): sentence of 1 year 1 month with a non-parole period of 7 months, following a 25% guilty plea discount
  • Aggregate sentence: 5 years and 2 months' imprisonment with a non-parole period of 3 years, commencing 26 February 2019; eligible for parole consideration on 25 February 2022; sentence expiring 25 April 2024

Key Takeaways

  • An offender sentenced for child sexual offences committed while a juvenile is entitled to mitigating weight for youth and immaturity, but the District Court confirmed this does not diminish the fundamental seriousness of the conduct or displace the protective and deterrent purposes of sentencing.
  • Where a jury returns mixed verdicts, including acquittals and a hung jury on related counts, the sentencing court must confine itself strictly to the proven offences. The offender receives the full benefit of any acquittal, and charges on which the jury disagreed cannot inform the sentencing exercise.
  • A guilty plea accepted in full satisfaction of a more serious indictment may still attract the early guilty plea discount under s 25D(3) of the Crimes (Sentencing Procedure) Act 1999, even where the plea is entered at a relatively late stage, provided the statutory conditions are met.
  • Under the aggregate sentencing framework, the principles of accumulation, concurrence, totality, and special circumstances operate together to ensure the combined sentence reflects the overall criminality without becoming disproportionate to the offender's circumstances and prospects.
  • The judgment reaffirms that retribution, as recognised in Ryan (2001) 206 CLR 267, is a significant sentencing principle in cases of sexual offending against children, reflecting the community's expectation that such conduct will attract severe punishment.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 61O(1), 66C(4), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(3)

Cases
- Dawkins v R [2018] NSWCCA 278
- DM [2005] NSWCCA 181
- Hearne (2001) 124 A Crim R 451
- Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150
- KT v R (2008) 182 A Crim R 571
- Mill v The Queen (1988) 166 CLR 59
- Nelson [2016] NSWCCA 130
- R v Cattell [2019] NSWCCA 297
- R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Pham & Ly (1991) 55 A Crim R 128
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Todd [1982] 2 NSWLR 517
- Ryan (2