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District Court 7 August 2020

R v Schnorrenberg

[2020] NSWDC 497

Sexual offences

Citation: R v Schnorrenberg [2020] NSWDC 497
Court: District Court of New South Wales
Date: 7 August 2020
Judge(s): Bennett SC DCJ

Background

The offender, a 39-year-old man, approached a 15-year-old girl at a shopping centre in Bankstown in September 2018. He misrepresented his age, accompanied her to his nearby unit, and over the evenings of 3 and 4 September 2018 committed two counts of sexual intercourse with a child aged above 14 and under 16, contrary to s 66C(3) of the Crimes Act 1900.

The offender had no prior relationship with the victim. CCTV footage, DNA evidence from the victim's clothing, and the victim's own disclosures to welfare workers and police formed the basis of the agreed facts. The offender was arrested in July 2019, approximately ten months after the offences.

He pleaded guilty in the Local Court at Burwood on 11 March 2020 under the early acceptance of guilty plea arrangements, attracting a mandatory 25% discount on sentence. A third sexual act, involving the offender directing the victim to perform oral sex on him, was not charged as a principal offence but was taken into account as a Form 1 offence (that is, an additional offence acknowledged by the offender and considered when determining the sentence for the primary charge, without a separate conviction being recorded).

  • What weight should be given to the Form 1 offence when sentencing on the principal charges?
  • How should the 25% early guilty plea discount be applied to the indicative sentences?
  • Whether the objective seriousness of the offences, including the age disparity, exploitation of the victim's vulnerability, and circumstances of the conduct, required a custodial sentence.
  • How to structure an aggregate sentence with an appropriate non-parole period, commencing from the date of arrest.

Decision

Bennett SC DCJ found that a custodial sentence was required, having crossed the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999. The judge cited the significant age disparity between the offender and the victim, the predatory nature of the initial approach, the sustained nature of the conduct across two evenings, and the absence of any condom use. The victim's subsequent distress and her disclosure to welfare workers immediately after leaving the offender's unit were treated as significant contextual features.

Applying the guideline judgment in Attorney-General's Application No 1 of 2002 [2002] NSWCCA 518, the judge increased the sentence for the principal offence in sequence 7 to reflect the Form 1 offence. The judge was satisfied that the impact of the Form 1 matter had to be more than marginal, given the nature and circumstances of that additional conduct.

The judge drew on R v Nelson [2016] NSWCCA 9 for the proposition that child victims of sexual offences are generally unable to give informed consent in any meaningful sense, and that even conduct that is not physically opposed may cause lasting psychological harm, including damage to self-worth and the capacity to form stable relationships in adulthood.

After applying the 25% discount and rounding down to eliminate remaining days, indicative sentences of 2 years and 9 months (sequence 7, inclusive of the Form 1 offence) and 2 years and 3 months (sequence 9) were set. The aggregate sentence was fixed with a non-parole period of 2 years, commencing from the date of arrest on 16 July 2019.

Orders Made

  • The offender was convicted on each principal offence (sequence 7 and sequence 9).
  • Indicative sentence for sequence 7 (including Form 1 offence, with 25% discount): 2 years and 9 months imprisonment.
  • Indicative sentence for sequence 9 (with 25% discount): 2 years and 3 months imprisonment.
  • Aggregate sentence: non-parole period of 2 years from 16 July 2019 to 15 July 2021, with a parole period of 1 year and 6 months expiring 15 July 2023.
  • Exhibits to remain on file as required by the parties.

Key Takeaways

  • The District Court confirmed that a Form 1 offence must have a more than marginal impact on the sentence for the principal offence when the additional conduct is serious in nature and circumstances, consistent with Attorney-General's Application No 1 of 2002.
  • A 25% sentence discount is mandatory where an offender enters an early guilty plea under the recently enacted arrangements in New South Wales, and the discount applies before the aggregate sentence is structured.
  • Under the approach in R v Nelson, sentencing courts treat child victims of sexual offences as incapable of meaningful consent, and recognise that long-term psychological harm may result even where the conduct was not physically resisted.
  • Predatory circumstances, including approaching a stranger in a public place, misrepresenting one's age, and directing a child to an isolated location, are treated as aggravating features going to the objective seriousness of child sexual offences.
  • Aggregate sentencing under the Crimes (Sentencing Procedure) Act 1999 requires the court to specify indicative sentences for each individual offence before fixing the overall non-parole period and head sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, Part 4 Div 1A

Cases:
- Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Bugmy v R [2013] HCA 37
- Imbornone v R [2017] NSWCCA 144
- R v Nelson [2016] NSWCCA 9
- R v Quatami [2001] NSWCCA 353