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District Court 13 August 2020

R v Austin

[2020] NSWDC 451

Sexual offences
CRIME SENTENCE ACT OF INDECENCY EARLY PLEA OF GUILTY

Citation: R v Austin [2020] NSWDC 451
Court: District Court of New South Wales
Date: 13 August 2020
Judge: M Adams QC ADCJ

Background

The offender, known at the time of the offence as Andrew Charles Austin, was sentenced for a single charge of aggravated act of indecency committed between August and September 1992. The offence occurred when the offender was 24 years old and employed as a carer at an after-school care organisation in Newtown. The victim was a six-year-old boy who attended a primary school near the facility.

The offence took place during an overnight babysitting arrangement at the offender's flat. The offender sexually assaulted the child while his sister slept in a nearby room, and afterwards told the child that the child himself had done something wrong and would be in trouble if he told anyone. The victim carried the psychological burden of that false framing for many years before disclosing the offending to family in 2007 and reporting it to police in December 2018. The offender was arrested in August 2019.

The offending was aggravated because the child was under the authority of the offender at the time, a circumstance captured in the charge under section 61M(2) of the Crimes Act 1900 as it then stood. The offender entered a plea of guilty at the earliest opportunity.

  • What sentence was appropriate for a single count of aggravated act of indecency committed approximately 28 years before sentencing?
  • What weight should be given to the offender's prior convictions for similar offending against children committed in 2004?
  • Whether the victim impact statement material should be treated as an aggravating factor under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the offender's subjective circumstances, including a troubled background, psychological profile, and remorse, warranted a reduced sentence.
  • Whether special circumstances existed justifying a variation of the standard ratio between non-parole period and overall sentence under section 44 of the Crimes (Sentencing Procedure) Act 1999.

Decision

His Honour assessed the offence as falling towards the lower end of objective seriousness. The offending was unplanned and spontaneous, involved a single incident against one victim, and while the use of a position of trust and authority was clearly an aggravating feature, the conduct was assessed against the full range of offences of this kind. The maximum penalty was 10 years imprisonment.

The psychological harm described by the victim in his impact statement was acknowledged as real and serious. However, the court held that such harm is inherent in offences of this nature and must be factored into the assessment of objective seriousness generally, rather than treated as a discrete aggravating circumstance under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.

The offender's 2006 convictions for indecent assault against three other child victims were noted. The court found those convictions did not aggravate the seriousness of the present offence but might suggest a risk of future offending. Given the time that had elapsed since that offending, the court did not consider personal deterrence needed to be weighted more heavily than usual. The court was ultimately satisfied that the overall risk of reoffending was low.

The offender received a 25% discount on sentence for his early plea of guilty. His Honour found the plea constituted cogent evidence of remorse given the strength of the prosecution case. No special circumstances were found to justify departing from the statutory non-parole ratio. The court also noted complaints from the offender about the management of a medical condition in custody but was unable to take that matter into account on the available evidence, while observing that prison authorities carry legal obligations to attend to prisoners' health needs.

Orders Made

  • The offender was sentenced to 16 months imprisonment, commencing 26 August 2019.
  • Non-parole period of 12 months, expiring 25 August 2020.
  • The offender was to be released on parole on 25 August 2020.
  • The court noted the offender is a registrable person under the Child Protection (Offenders Registration) Act 2000, as the offence constitutes a Class 2 registrable offence.

Key Takeaways

  • Psychological harm suffered by child victims of indecency offences is properly factored into the assessment of objective seriousness of the offence itself, rather than treated as a separate statutory aggravating circumstance under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
  • A prior criminal history for similar offending does not automatically aggravate the seriousness of the offence being sentenced, though it may be relevant to the risk of future offending and the weight given to personal deterrence.
  • Where significant time has elapsed since prior offences, a sentencing court may reduce the weight ordinarily given to personal deterrence in light of that prior history.
  • An early guilty plea in the face of a strong prosecution case can itself be treated as cogent evidence of genuine contrition, justifying the full 25% sentencing discount.
  • The District Court confirmed that prisoners retain legally enforceable entitlements to appropriate medical treatment in custody, regardless of the nature of their offending, though insufficient evidence in this case prevented the court from acting on those complaints in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), section 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 21A(2)(g) and 44
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases cited: None stated in the judgment.