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District Court 4 February 2020

R v Newbond

[2020] NSWDC 19

Sexual offences
CRIMES SENTENCE

Citation: R v Newbond [2020] NSWDC 19
Court: District Court of New South Wales
Date: 4 February 2020
Judge: Colefax SC DCJ

Background

The offender was sentenced for three principal offences involving sexual offending against a child he met through a Facebook group focused on bondage and sadomasochism. The victim was 13 years old when contact began in January 2013; the offender was 31. After each disclosed their real ages, the offender continued communicating with the child via Skype almost daily for nearly two years, during which sexually explicit contact occurred regularly.

The offending escalated when the offender travelled from Melbourne to regional New South Wales over the Easter long weekend of 2015. Over three consecutive nights, the then-15-year-old victim snuck out of her parents' home to meet him at a motel, where penile/vaginal intercourse occurred on each occasion. A further offence of digital penetration and a subsequent act of intercourse at a motel in Liverpool took place between July and August 2015.

The victim came to understand the wrongfulness of what had occurred after attending a cyber safety lecture at her high school in 2017. She disclosed the conduct to her mother in January 2018, and the offender was arrested in July 2018. He pleaded guilty at the first available opportunity.

  • What were the appropriate indicative sentences for each of the three principal offences under ss 66C(3) and 66EB(2) of the Crimes Act 1900 (NSW)?
  • How should the three additional offences on the Form 1 be reflected in the sentence for the procuring offence?
  • Whether an aggregate sentence was appropriate, and what non-parole period should be fixed.
  • Whether special circumstances existed to justify varying the standard 75% non-parole period ratio.
  • What weight should be given to the offender's mental health history, physical disability, prospects of rehabilitation, and early guilty plea?

Decision

Colefax SC DCJ assessed the objective seriousness of the principal offences as follows: the first sexual intercourse offence (sequence 1) was slightly below mid-range; the digital penetration offence (sequence 2) was below mid-range; and the procuring offence (sequence 4) was a mid-range offence, with the three Form 1 matters producing a meaningful uplift to that sentence. The court noted several factors that were deliberately not established by agreement between the parties, including whether a condom was used or ejaculation occurred, and declined to treat these as aggravating circumstances in the absence of proof.

The offender received a 25% discount on each indicative sentence for his early guilty plea. Indicative sentences were: 3 years for sequence 1, 18 months for sequence 2, and 5 years and 3 months for sequence 4 (with an indicative non-parole period of 2 years and 7 months). The court imposed an aggregate sentence of 7 years' imprisonment.

The court found special circumstances justifying a departure from the standard non-parole period ratio, citing the offender's first time in custody, unresolved mental health issues, a chronic and acute asthma condition, and the assessment that a longer parole period would better support his rehabilitation. The non-parole period was fixed at 3 years and 6 months, creating an equal balance of sentence to serve on parole.

The court stated plainly that no sentence other than full-time imprisonment was appropriate given the need to protect children from sexual predators, and that general deterrence, specific deterrence, and community protection were the paramount sentencing considerations in cases of this kind.

Orders Made

  • Aggregate term of imprisonment of 7 years imposed for the three principal offences.
  • Non-parole period of 3 years and 6 months, commencing 4 February 2020 and expiring 3 August 2023.
  • Balance of sentence of 3 years and 6 months, commencing 4 August 2023 and expiring 3 February 2027.
  • Special circumstances found, varying the standard non-parole period ratio.
  • Three additional matters (sequences 3, 5, and 6) taken into account on a Form 1 in relation to sequence 4.

Key Takeaways

  • The District Court confirmed that offences involving sustained online sexual grooming of a child, followed by repeated in-person intercourse, attract full-time custodial sentences with no alternative, given the primacy of child protection and general deterrence.
  • A 25% sentencing discount applied where the offender entered a guilty plea at the first available opportunity, consistent with established sentencing principle.
  • Where potentially aggravating facts, such as failure to use a condom or ejaculation, were deliberately not placed before the court by agreement, the sentencing judge declined to treat them as aggravating factors, applying the principle that adverse speculation is impermissible.
  • Special circumstances were established on the basis of multiple concurrent factors: a first custodial term, unresolved mental health issues, a significant physical health condition, and a finding that a longer parole period would enhance rehabilitation prospects.
  • Under s 66EB(2) of the Crimes Act 1900, the maximum penalty for procuring a child for unlawful sexual activity is 12 years' imprisonment, with a standard non-parole period of 5 years. The sentencing court treated this as the structurally significant offence around which the aggregate sentence was constructed, reflecting the sustained nature of the conduct underpinning it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C(3) (sexual intercourse with a person aged 14 to 16; maximum 10 years' imprisonment, no standard non-parole period)
- Crimes Act 1900 (NSW), s 66EB(2) (procuring a child for unlawful sexual activity; maximum 12 years' imprisonment, standard non-parole period of 5 years)

Cases: No cases were cited in the judgment.