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District Court 10 March 2020

R v Givney

[2020] NSWDC 353

Sexual offences
SENTENCING CHILD SEX OFFENCES SEXUAL INTERCOURSE WITH CHILD 14 16, CRIMES ACT 1900, S 66C(3)

Citation: R v Givney [2020] NSWDC 353
Court: District Court of New South Wales
Date: 10 March 2020
Judge(s): Payne DCJ

Background

The offender, a man with a prior conviction for sexual intercourse without consent involving a 16-year-old girl, was a registered child protection offender at the time of these offences. He had a close social connection with the victim's family, having met the victim's mother in 2016. The victim, who was 15 years old at the relevant time, and her siblings regularly visited the offender's home.

From approximately November 2018, the offender used Facebook Messenger and Snapchat to conduct an escalating course of conduct toward the victim. This included sending her naked photographs of himself, forwarding pornographic videos, and exchanging messages of an increasingly sexual nature. The offender was also registered under the Child Protection (Offenders Registration) Act 2000 and was separately charged on a Form 1 with failing to register his contact with the victim.

On 17 November 2018, the victim's mother arranged for the victim to stay at the offender's house following a family dispute, including police attending the family home. That night, the offender committed the physical offences against the victim.

  • The appropriate sentence for three offences arising from the same course of conduct: grooming a child for unlawful sexual activity (s 66EB(3), Crimes Act 1900), indecent assault of a person under 16 (s 61M(2), Crimes Act 1900), and sexual intercourse with a person aged 14 to 16 (s 66C(3), Crimes Act 1900).
  • Whether an aggregate sentence was appropriate and, if so, how the principle of totality should be applied across the three counts.
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of the sentence.
  • How a 25 percent discount for the offender's plea of guilty should be applied to each indicative sentence.

Decision

Payne DCJ convicted the offender on all three counts and imposed an aggregate custodial sentence. The judge noted that counts 2 and 3 (the indecent assault and the sexual intercourse offence) were committed concurrently on the same occasion, which was relevant to the totality analysis. The sentencing judge emphasised the need to recognise harm to the victim, denounce the conduct, hold the offender accountable, and satisfy the requirement for general deterrence.

The court applied a 25 percent discount to each indicative sentence to reflect the offender's guilty plea. The indicative sentence for count 1 (grooming) was reduced from four years and three months to three years and two months, with a non-parole period of one year and eleven months. Count 2 (indecent assault) was reduced from four years to three years, with a non-parole period of one year and ten months. Count 3 (sexual intercourse) was reduced from four years and nine months to three years and six months.

After applying the principle of totality and having regard to the concurrent nature of counts 2 and 3, the court fixed an aggregate sentence of five years. A finding of special circumstances was made, with an allowance of six months, resulting in a non-parole period of three years and three months rather than the statutory default. The judge considered this moderation of the ratio appropriate given the circumstances of the case.

Orders Made

  • Offender convicted on all three counts.
  • Aggregate sentence of five years imprisonment, commencing 25 February 2019 and expiring 24 February 2024.
  • Aggregate non-parole period of three years and three months, commencing 25 February 2019 and expiring 24 May 2022.
  • Finding of special circumstances made, with a six-month allowance applied.
  • The offender was eligible for consideration for release to parole on 24 May 2022.

Key Takeaways

  • The District Court applied an aggregate sentencing approach under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, stating indicative sentences for each count before fixing a single combined term that reflected the principle of totality.
  • A prior conviction for a sexual offence, combined with registered sex offender status and a failure to comply with registration obligations, formed part of the objective circumstances the court weighed in sentencing.
  • Where two offences arise from the same physical incident, the principle of totality requires the sentencing court to account for the concurrent nature of that conduct when setting the overall sentence, avoiding a result that is disproportionate to the total criminality.
  • Under s 3A of the Crimes (Sentencing Procedure) Act 1999, recognition of harm to the victim, general deterrence, denunciation, and offender accountability are all live considerations in child sexual offence sentencing, even in the absence of a victim impact statement.
  • A finding of special circumstances can justify reducing the statutory non-parole period ratio where the individual circumstances of the case warrant a longer period of supervised parole upon release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(3), 66EB(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A(2)(b)
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases cited: No cases cited in the judgment as provided.