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District Court 25 June 2020

Freeman v DPP (No. 2)

[2020] NSWDC 333

Sexual offences
CRIMINAL LAW RELEVANCE OF PRIOR GOOD CHARACTER

Citation: Freeman v DPP (No. 2) [2020] NSWDC 333
Court: District Court of New South Wales
Date: 25 June 2020
Judge: Abadee DCJ

Background

The appellant was convicted in the Wyong Local Court on two charges of intentional sexual touching of a child aged between 10 and 16 years, contrary to s 66DB(a) of the Crimes Act 1900 (NSW). Both charges arose from the same incident on 4 May 2019, when the appellant entered the bedroom of a 14-year-old girl he had known all her life as a family "uncle," and touched her in a sexual manner while she was clothed. The Local Court sentenced him to a two-year community corrections order, with the sentences on each charge to run concurrently, along with 100 hours of community service work and AVO conditions.

On a conviction appeal, the District Court set aside the conviction on the second charge (touching the victim's bottom) but confirmed the conviction on the first charge (touching the victim's vagina). The appellant then sought leave to bring a severity appeal, arguing that the removal of one conviction should result in a reduced sentence on the surviving charge.

  • Whether setting aside one of two concurrent sentences required a reduction in the sentence imposed for the surviving conviction.
  • Whether the original sentencing Magistrate erred in her approach to aggravating factors, including the appellant being on a bond at the time of the offence and the breach of trust involved.
  • Whether prior good character was a relevant mitigating factor in the circumstances of this offending.

Decision

Abadee DCJ exercised the sentencing discretion afresh and concluded that the two offences had, in any event, been treated by the Magistrate as a single episode occurring over a short period of time. Because the original concurrent sentences effectively reflected one event, setting aside the second conviction did not, of itself, require any reduction in the sentence for the surviving charge. His Honour accepted there was some logical force in the appellant's argument about "less offending," but held this did not translate into a lower sentence in these circumstances.

On objective seriousness, His Honour placed the offending at the low end of the range for offences of this kind. Relevant factors included the brief and impulsive nature of the touching, the absence of skin-to-skin contact, no prior grooming, and the victim's age falling toward the upper end of the 10-to-16 range. That said, three aggravating factors applied: the offending occurred in the victim's home, the appellant was on a bond at the time, and the familial relationship between the appellant and the victim constituted a breach of trust.

On subjective matters, His Honour declined to treat prior good character as a mitigating factor. Where an offender's standing in a community, particularly in a role involving children, assisted them in committing the offence, that good character cannot be relied upon in mitigation. The Magistrate's contrary approach was identified as arguably erroneous, though one which had in fact operated in the appellant's favour at first instance.

The only variation to the sentence was a minor adjustment to the expiry date of the community corrections order, to account for the 21-day period during which the sentence had been stayed following the grant of leave to bring the severity appeal.

Orders Made

  • The community corrections order imposed on 21 January 2020 was varied to expire on 10 February 2022 (extended to account for the 21-day stay of sentence).
  • The severity appeal was otherwise dismissed.

Key Takeaways

  • Setting aside one of two concurrent convictions does not automatically reduce the sentence on the surviving conviction, particularly where the sentencing court treated both offences as a single episode occurring within a short timeframe.
  • Where an offender's good character or community standing facilitated access to the victim, that prior good character is not available as a mitigating factor in sentencing.
  • The District Court identified three statutory aggravating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW): the offending occurred in the victim's home (s 21A(2)(eb)), the offender was on a bond at the time (s 21A(2)(j)), and the relationship created a breach of trust (s 21A(2)(k)).
  • Under s 25AA(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court is required to have regard to the trauma of sexual abuse on children as understood at the time of sentencing; harm to a child victim of sexual touching may also be assumed even without direct evidence.
  • A stay of sentence resulting from the grant of leave to appeal operates to toll the running of the sentence, and any variation on appeal may need to adjust the expiry date accordingly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HB, 66DB
- Crimes (Appeal and Review) Act 2001 (NSW), s 63
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 25AA

Cases
- Freeman v DPP [2020] NSWDC 280 (the related conviction appeal)
- R v Hudson (unreported, 30 July 1998, NSWCCA)
- R v Nelson [2016] NSWCCA 130
- R v Tuala [2015] NSWCCA 8