Citation: R v Belmore (a pseudonym) [2020] NSWDC 320
Court: District Court of New South Wales
Date: 22 May 2020
Judge: Colefax SC DCJ
Background
The offender, referred to by the pseudonym "Belmore," was born in October 1998 and pleaded guilty to three principal offences of sexual intercourse with a person aged over 10 but under 14 years, contrary to s 66C(1) of the Crimes Act 1900 (NSW). The offences occurred across mid-to-late 2017, when the offender was 18 years old and the victim was 13. Two additional offences of the same kind were taken into account on a Form 1 (a mechanism by which a court considers uncharged or related matters when imposing sentence on a principal offence, without separately convicting the offender of those matters).
The offending arose within a context of significant breach of trust. The victim's family, members of the same Pentecostal church where the offender led the youth group, had taken him into their home after learning of his difficult upbringing. The offender and the victim conducted a secret romantic and sexual relationship while living under the same roof, deliberately concealing it from the victim's parents. The offender had, by reason of his role as a youth group leader, received training in identifying and reporting inappropriate conduct.
The offending included digital penetration, cunnilingus, fellatio, and penile/vaginal intercourse. Some acts occurred in the family home while the parents were asleep; one occurred during a trip to Canberra, which the offender and the victim had arranged specifically to create an opportunity for intercourse.
Legal Issues
- What is the objective seriousness of each principal offence relative to the statutory range, including the effect of the Form 1 matters on the sentence for sequence 3?
- What weight should be given to mitigating factors, including the offender's youth (aged 18 at the time), dysfunctional upbringing, psychological conditions, and early guilty plea?
- What role do general and specific deterrence play given the offender's age and psychological history?
- Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the head sentence under an aggregate sentencing approach.
Decision
Colefax SC DCJ assessed the objective seriousness of the three principal offences as follows: sequences 3 and 4 (sexual acts in the family home) fell just below the midrange for offences of their kind, while sequence 7 (penile/vaginal intercourse in Canberra, premeditated and involving the purchase of condoms) sat at the midrange. All three offences were additionally aggravated by the fact that they were committed in the victim's home. The two Form 1 matters warranted a meaningful uplift in the sentence for sequence 3.
Victim impact statements from both the primary victim and her mother confirmed significant and ongoing psychological harm. The court noted that such psychological harm is a common consequence of offences of this type and therefore did not treat it as a separately aggravating factor, while expressly acknowledging the seriousness of the harm caused.
On mitigation, the court gave considerable weight to the offender's youth at the time of offending, his dysfunctional childhood (marked by a largely absent and substance-dependent mother, the absence of a father figure, and emotional isolation), and his diagnosed underlying psychological conditions. Consistent with established principle, general deterrence was accorded reduced weight given his age, and reduced further by his psychological conditions. Specific deterrence and the encouragement of rehabilitation, however, were treated as fully engaged. A 25% discount was applied for the early guilty plea, which the court found reflected both recognition of the strength of the Crown case and genuine remorse.
The court imposed an aggregate sentence and found special circumstances, substantially departing from the standard ratio between the non-parole period and the head sentence. The finding of special circumstances was based on the offender's youth and his ongoing psychological needs, which required a longer period on parole to support rehabilitation.
Orders Made
- Aggregate term of imprisonment of 3 years and 3 months imposed for the three principal offences.
- Non-parole period of 1 year and 6 months, commencing 22 May 2020 and expiring 21 November 2021.
- Balance of term of 1 year and 9 months, commencing 22 November 2021 and expiring 21 August 2023.
- Special circumstances found, justifying a significant variation to the standard non-parole period to head sentence ratio.
Key Takeaways
- The District Court treated the location of the offending (within the victim's home) as a statutory aggravating factor, and the premeditated nature of one offence (the Canberra trip) as relevant to placing it at the midrange of objective seriousness.
- A position of trust and responsibility, here the offender's role as a church youth group leader with mandatory reporting training, formed a significant part of the sentencing context, even where no formal custodial or supervisory relationship existed at law.
- Where an offender was aged 18 at the time of offending, the sentencing court is required to treat general deterrence as a factor of reduced weight, and may reduce it further where underlying psychological conditions are established.
- Form 1 matters of the same character as the principal offence can produce a meaningful increase in the sentence for that principal offence, even where they do not attract separate convictions.
- Special circumstances justifying an extended parole period can be established by a combination of the offender's youth and psychological conditions, where a longer supervised period in the community is assessed as necessary to support rehabilitation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66C(1) (sexual intercourse with a child aged over 10 and under 14; maximum penalty 16 years' imprisonment; standard non-parole period 7 years)
Cases cited: No cases were cited in the judgment as provided.