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District Court 2 April 2020

R v LD

[2020] NSWDC 227

Sexual offences
CRIME SENTENCING HISTORICAL CHILD SEX OFFENCE INDECENT ASSAULT GUILTY PLEA SPECIAL CIRCUMSTANCES FOUND

Citation: R v LD [2020] NSWDC 227
Court: District Court of New South Wales
Date: 2 April 2020
Judge: Wilson SC DCJ

Background

The offender, a man aged 55 at the time of sentencing, faced six counts on an indictment together with one additional charge dealt with on a Form 1. The historical sexual offending involved the offender's nephew and occurred over 20 years before sentencing, when the victim was between six and nine years of age. A separate count addressed the offender's more recent possession of child abuse material on two computers.

The offending came to light in an unusual way. In February 2019, the offender sent a farewell text message to his sister and attempted suicide by jumping in front of a bus. After being admitted to hospital under the Mental Health Act 2007 (NSW), he disclosed the abuse to medical staff and, once told that police would be informed, provided further details. Police interviewed him on 21 March 2019, and he made full admissions.

The offender had been made redundant at age 50, and his life had subsequently deteriorated through alcoholism and gambling. He was committed for sentence from the Central Local Court on 31 October 2019 following a guilty plea, and had been in custody since his arrest on 21 March 2019.

  • What aggregate sentence was appropriate for six counts of historical child sexual offending, plus one Form 1 charge and one count of possessing child abuse material?
  • What weight should be given to the guilty plea discount under the Crimes (Sentencing Procedure) Act 1999 (NSW), including the timing of the plea?
  • What weight should be given to the offender's assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • Whether special circumstances existed to justify varying the ratio between the non-parole period and the head sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • Whether the statutory warning under the Crimes (High-Risk Offenders) Act 2006 (NSW) was required?

Decision

The court identified the counts on the indictment as follows: four counts of indecent assault of a child under ten (s 61M(2) of the Crimes Act 1900, maximum 10 years each), one count of committing an act of indecency with a child under ten (s 61O(2), maximum 7 years), and one count of possessing child abuse material (s 91H(2), maximum 10 years). The Form 1 charge was a further count of indecent assault under s 61M(2). The agreed facts described multiple discrete acts of digital touching, fondling, and indecent exposure across several occasions, with the victim attempting to resist and showing signs of fear and distress throughout.

Wilson SC DCJ found that both a guilty plea discount and a reduction for assistance to authorities under s 23 applied. The plea was entered at the committal stage, which informed the level of discount. The offender's spontaneous disclosure to hospital staff, full admissions to police, and cooperation throughout the investigation were treated as substantial mitigating factors. The court also identified genuine remorse, evidenced by the suicidal crisis prompted by guilt over the historical abuse, as a significant mitigating consideration.

Special circumstances were found to exist, warranting a departure from the standard non-parole period ratio. The court noted the offender's need for rehabilitation, the circumstances of his deteriorated mental state and substance abuse, and the utility of an extended period on parole for supervision and support. This finding resulted in a non-parole period representing two-thirds of the head sentence rather than the standard three-quarters.

The court imposed an aggregate sentence and issued the statutory warning under the Crimes (High-Risk Offenders) Act 2006 (NSW), informing the offender that the Supreme Court has power to impose an extended supervision order or a continuing detention order upon release, depending on the risk assessment at that time.

Orders Made

  • Aggregate head sentence of 6 years imprisonment, commencing 21 March 2019 and expiring 20 March 2025
  • Non-parole period of 4 years, commencing 21 March 2019 and expiring 20 March 2023, at which date the offender becomes eligible for parole
  • Indicative sentences recorded for each count:
  • Count 1: 2 years 3 months
  • Count 2: 1 year 10 months 15 days
  • Count 3: 1 year 6 months
  • Count 4: 1 year 6 months
  • Count 5: 1 year 4 months
  • Count 6: 1 year 10 months 15 days
  • Statutory warning issued under the Crimes (High-Risk Offenders) Act 2006 (NSW)

Key Takeaways

  • The District Court found that spontaneous self-disclosure of historical offending to medical staff, followed by full admissions to police and sustained cooperation, constituted meaningful assistance to authorities warranting a sentencing reduction under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • A guilty plea entered at the committal stage attracted a discount, with the precise level reflecting the timing of that plea relative to the earliest available opportunity.
  • Special circumstances under the sentencing legislation were established where the offender's rehabilitation needs, mental health history, and substance abuse issues indicated that a longer period on parole would serve the purposes of sentencing better than the standard ratio.
  • Where an offender is being sentenced for serious sex offences, the court is required by law to give a formal warning about the operation of the Crimes (High-Risk Offenders) Act 2006 (NSW), including the possibility of extended supervision or continued detention after release.
  • Genuine remorse, evidenced by conduct predating any formal investigation (including a suicide attempt driven by guilt), can carry significant mitigating weight in sentencing for historical child sexual offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23, 25AA(1)
- Crimes (High-Risk Offenders) Act 2006 (NSW), ss 1A, 5
- Mental Health Act 2007 (NSW)

Cases:
- Gore v R (2010) 208 A Crim R 353
- Ivimy v R [2008] NSWCCA 25
- McLaughlin v R [2013] NSWCCA 152
- R v Cattell [2019] NSWCCA 297
- R v De Leeuw [2015] NSWCCA 183