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District Court 20 March 2020

R v Heyward

[2020] NSWDC 248

Sexual offences
CRIME SENTENCE

Citation: R v Heyward [2020] NSWDC 248
Court: District Court of New South Wales
Date: 20 March 2020
Judge: Colefax SC DCJ

Background

The offender pleaded guilty to one count of homosexual intercourse with a male between the ages of 10 and 18 years, contrary to s 78K of the Crimes Act 1900 (NSW). The offence occurred in August 1985, when the offender was 34 years old and the victim was almost 16. The offender owned a garden centre and the victim was a school-aged employee working there after school hours.

At sentencing, the offender was nearly 70 years old, had no prior or subsequent criminal history, remained married and served as his wife's primary carer. The court accepted that the offence had weighed on the offender's conscience over the intervening decades and that he was genuinely and deeply remorseful.

The central dispute at the sentencing hearing was not the length of the sentence but how it should be served. The key question was whether an Intensive Correction Order (ICO) was legally available as an alternative to full-time custody.

  • Whether the offence under s 78K of the Crimes Act 1900 constitutes a "prescribed sexual offence" within the meaning of s 67(1) of the Crimes (Sentencing Procedure) Act 1999 (which, if so, would preclude the court from imposing an ICO).
  • If s 78K is not a "prescribed sexual offence," whether an ICO was nonetheless appropriate having regard to objective seriousness and community safety.
  • Whether the s 5 threshold for imprisonment had been crossed, requiring a sentence of full-time custody or an alternative custodial order rather than a non-custodial sentence.

Decision

On the s 5 threshold: The court was satisfied that the nature of the sexual offending, the offender's age at the time, and the victim's age collectively crossed the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999, meaning no sentence other than imprisonment was appropriate. After applying a 15 percent discount for the late guilty plea, the court arrived at a term of two years' imprisonment.

On the prescribed sexual offence question: The court accepted the offender's submission that s 78K is not a "prescribed sexual offence" for the purposes of s 67(1). In doing so, Colefax SC DCJ followed the earlier ruling of Woodburne SC DCJ in R v PLS (unreported, 13 November 2019), where the same construction had been adopted. The court noted that it would only depart from a ruling by a judge of equivalent jurisdiction if positively persuaded it was wrong, and was not so persuaded.

On the Crown's submissions: The court was pointedly critical of the Crown's inconsistent position. In the present matter, the Crown submitted that s 78K was a prescribed sexual offence. In R v PLS, the Crown had taken the opposite view and agreed with the offender. The court observed that the Crown had more than three months to consider the issue with knowledge of the earlier case and still advanced an inconsistent position. The Crown's alternative submission, that the "spirit" of the relevant legislative amendments should preclude an ICO in any event, was rejected without citation of authority.

On whether an ICO was appropriate: The court was satisfied that community safety, as the paramount consideration, would be adequately served by an ICO. The offender had demonstrated complete rehabilitation over more than 30 years with no further offending. The two-year sentence was ordered to be served by way of an ICO with mandatory conditions and 500 hours of community service.

Orders Made

  • A sentence of two years' imprisonment to be served by way of an Intensive Correction Order, commencing 20 March 2020.
  • Mandatory conditions: the offender must not commit any offence and must submit to supervision by a community corrections officer.
  • Additional condition: the offender must perform 500 hours of community service.
  • The offender was directed to report to the Campbelltown Community Corrections office by 4pm on Tuesday 24 March 2020.

Postscript: The Crown filed an Amended Notice of Appeal on 21 April 2020, contending the ICO was imposed contrary to law. On 27 May 2020, the Crown abandoned that appeal.

Key Takeaways

  • An offence under s 78K of the Crimes Act 1900 (NSW) is not a "prescribed sexual offence" within the meaning of s 67(1) of the Crimes (Sentencing Procedure) Act 1999, with the result that an ICO is not automatically precluded as a sentencing option.
  • Where a judge of concurrent jurisdiction has already ruled on a point of statutory construction, the District Court will apply that ruling unless positively persuaded it is incorrect.
  • Inconsistent submissions advanced by the Crown on the same point of statutory construction before different judges, particularly where the Crown had full knowledge of the earlier decision, drew express judicial criticism.
  • A bare submission that the "spirit" of legislative amendments should expand a statutory prohibition beyond its text carries no weight where no authority is offered in support.
  • The Crown's subsequent abandonment of its appeal against the ICO left the construction adopted in both R v PLS and this decision undisturbed at the appellate level.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 78K
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5, s 67(1)

Cases:
- R v PLS, unreported, 13 November 2019, Woodburne SC DCJ (District Court, Parramatta)