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District Court 18 March 2020

R v RM

[2020] NSWDC 52

Sexual offences
CRIME SEXUAL OFFENCES NO RECORD OF PREVIOUS CONVICTIONS PLEA OF GUILTY

Citation: R v RM [2020] NSWDC 52
Court: District Court of New South Wales
Date: 18 March 2020
Judge: Lerve DCJ

Background

The offender, a 41-year-old man, pleaded guilty to one charge of an adult maintaining an unlawful sexual relationship with a child under s 66EA(1) of the Crimes Act 1900. The charge was particularised by 14 unlawful sexual acts committed against his biological daughter over a period spanning approximately 2010 to 2018, when the victim was aged between approximately 5 and 12 years.

The offending came to light in April 2019 when the victim, who had been staying with her paternal grandmother in Queensland, disclosed the abuse to a cousin. Screenshots of those text messages were sent to the victim's mother. When the victim's mother read the messages in the offender's presence, he spontaneously confirmed their truth and directed her to call police. He then voluntarily accompanied officers to the police station and made extensive, detailed admissions in a recorded interview, admitting to offending that went beyond the 14 representative acts particularised in the charge.

The sentencing hearing took place in the Wagga Wagga District Court on 5 February 2020. The offender maintained his plea of guilty. A publication restriction applied to both the victim's and the offender's names, given the familial relationship between them.

  • Whether the offender was entitled to a discount on sentence for a guilty plea, and at what rate
  • Whether a further numerical discount was warranted for assistance to law enforcement, given the unusual nature of the assistance relied upon
  • What the appropriate starting point for sentence was, having regard to the gravity of the offending and relevant mitigating factors
  • Whether special circumstances existed to justify varying the statutory ratio between non-parole period and balance of term

Decision

Guilty plea discount. Lerve DCJ held that the offender was entitled to the full 25% utilitarian discount for the guilty plea, which was entered at the Local Court and maintained at the commencement of the District Court hearing.

Assistance discount. The Crown opposed any discount for assistance, noting that the nature of the assistance was not the conventional cooperation with law enforcement (such as providing information about third parties). The court accepted that the offender's immediate, spontaneous admissions and his voluntary participation in a police interview constituted a form of assistance that warranted a discount, though the nature of the assistance differed from the usual situation. A combined discount of 35% was applied for both the plea of guilty and the assistance.

Starting point and head sentence. Lerve DCJ fixed the appropriate starting point at 25 years imprisonment. This reflected the seriousness of the offending: the abuse spanned approximately eight years, involved a young biological daughter as the victim, began when the victim was approximately five years old, and encompassed a wide range of sexual conduct including offences of sexual intercourse. Applying the 35% combined discount to the 25-year starting point produced a total sentence of 16 years and 3 months.

Special circumstances. The court declined to make a finding of special circumstances to adjust the statutory non-parole ratio. Lerve DCJ was satisfied that the parole period produced by the standard ratio would provide sufficient time for supervision of the offender upon release.

Orders Made

  • The offender was convicted of the offence under s 66EA(1) of the Crimes Act 1900
  • Sentenced to imprisonment with a non-parole period of 12 years and 2 months, commencing 11 April 2019 and expiring 10 June 2031
  • Balance of term of 4 years and 1 month, commencing 11 June 2031 and expiring 10 July 2035
  • The court recommended the offender's release at the expiration of the non-parole period

Key Takeaways

  • A combined discount of 35% for both a guilty plea and assistance to authorities was applied where the assistance consisted of spontaneous admissions in the presence of the victim's mother and voluntary, detailed cooperation with a police interview, rather than conventional assistance involving information about third parties.

  • Under s 66EA(1) of the Crimes Act 1900, the maximum penalty is life imprisonment, and no standard non-parole period has been prescribed by Parliament. The District Court treated a 25-year starting point as appropriate for serious, prolonged familial abuse spanning approximately eight years with a victim aged from approximately 5 to 12.

  • No finding of special circumstances was made where the standard statutory parole period was considered adequate to supervise the offender's reintegration, even though rehabilitation remained a relevant sentencing consideration.

  • The court confirmed that a sentence of full-time imprisonment was inevitable given the maximum penalty of life imprisonment and the nature of the offending, notwithstanding the absence of prior convictions and the existence of other mitigating factors.

  • Where a familial relationship exists between an offender and a victim, publication restrictions will extend to the offender's name as well as the victim's, to protect the victim's anonymity.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66EA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases
- R v GP [2019] NSWDC 493
- Bravo v R [2015] NSWCCA 302
- R v TWP [2006] NSWCCA 141
- R v Muldoon (unrep, NSWCCA, 13 December 1990)
- R v Van Ryn [2016] NSWCCA 1
- Chamseddine v R [2017] NSWCCA 176
- R v Burchell (1987) 34 A Crim R 148
- MC v R [2017] NSWCCA 316
- R v Tuala [2015] NSWCCA 8
- R v Ellis (1986) 6 NSWLR 603
- R v AA [2017] NSWCCA 84
- Bugmy v The Queen [2013] HCA 37
- Brown v R [2014] NSWCCA 215
- SS v The Queen [2016] NSWCCA 197
- IS v R [2011] NSWCCA 142
- Mills v R [2017] NSWCCA 87
- R v DR [2018] NSWDC 405
- Ryan v The Queen (2001) 179 ALR 193