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District Court 19 May 2020

R v WILSON

[2020] NSWDC 624

Sexual offences
CRIMINAL LAW SENTENCE LACK OF INSIGHT TROUBLED YOUTH POST TRAUMATIC SYNDROME DISORDER

Citation: R v Wilson [2020] NSWDC 624
Court: District Court of New South Wales
Date: 19 May 2020
Judge: Judge W Hunt

Background

The offender, a young man, appeared for sentence on four counts arising from sexual offending against children in the Inverell area in 2018. The two principal counts were sexual intercourse with a child aged between ten and fourteen years (Count 1), and sexual intercourse with a child aged between fourteen and sixteen years (Count 2). Two related offences of grooming a child for unlawful sexual activity were also before the Court, involving two separate victims.

The offending on Count 1 occurred when the offender was living with the family of the victim, a twelve-year-old girl. One evening, after the victim's cousin fell asleep, the offender and the victim engaged in sexual intercourse. The offender made full admissions to police when interviewed and pleaded guilty early in the Local Court proceedings. The grooming offences, along with Count 2, came to light following police examination of the offender's mobile phone rather than through a complaint by the victims.

The offender had been in custody solely in relation to these matters since 26 April 2019. The parties agreed that any aggregate sentence should be backdated to that date. His cooperation with police and his early guilty plea were central considerations at sentence.

  • What were the appropriate indicative sentences for each count, having regard to objective seriousness, the offender's age and background, and applicable discounts?
  • What discount, if any, was warranted for the early guilty plea (utilitarian discount) and for assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999?
  • Whether special circumstances existed to justify a non-parole period that was a lower proportion of the head sentence than the statutory norm, given the importance of rehabilitation.
  • How should the aggregate sentence be structured across four counts, including one carrying a standard non-parole period?

Decision

Judge Hunt identified the serious nature of the offending, noting that children are entitled to grow up free from sexual interference, and that the legislature's prescribed maximum penalties and standard non-parole period for Count 1 reflect the gravity with which the community regards such offending. However, the objective seriousness was somewhat reduced by the offender's relatively young age at the time of the offences and his own sexual naivety.

The Court applied a 25 per cent utilitarian discount across all counts for the early guilty plea, reflecting the statutory entitlement that flows from an early plea in the Local Court. A further 5 per cent discount was applied under s 23 of the Crimes (Sentencing Procedure) Act 1999 for the offender's assistance to authorities, given the candid and cooperative manner in which he participated in his police interview, providing material that could have been used to prosecute him at trial.

Judge Hunt found special circumstances warranting a non-parole period of less than the standard proportion of the head sentence. The Court placed significant weight on rehabilitation, noting the offender's troubled youth, his diagnosis of post-traumatic stress disorder, his complete absence of personal visitors during custody, and the importance of an extended period on supervised parole to support his reintegration.

The Court recommended to the State Parole Authority that the offender be required to accept supervision by Community Corrections and undertake any available community-based sex offender education programme.

Orders Made

  • The offender was convicted on all four counts.
  • An aggregate head sentence of three years and three months was imposed, backdated to 26 April 2019, expiring 25 July 2022.
  • A non-parole period of nineteen months was set, with an earliest release to parole date of 25 November 2020.
  • The Court recommended to the State Parole Authority that the offender be supervised by Community Corrections and undertake community-based sex offender education.

Key Takeaways

  • The District Court confirmed that objective seriousness in child sexual offence sentencing can be moderated by the offender's own youth and sexual naivety at the time, though the fundamental gravity of the offending remains high.
  • A 25 per cent utilitarian discount applied where the offender entered an early guilty plea in the Local Court, consistent with the statutory framework under the Crimes (Sentencing Procedure) Act 1999.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999, a modest additional discount (here 5 per cent) may be available where an offender cooperates candidly with police, even where that cooperation precedes a formal assistance agreement.
  • Special circumstances can justify a non-parole period representing less than the standard proportion of the head sentence where the rehabilitation needs of a young, disadvantaged offender are pronounced, reflecting the principle in Bugmy v The Queen that background disadvantage remains a relevant consideration throughout a person's life.
  • A grooming offence discovered through police examination of a mobile phone, rather than through victim complaint, does not diminish its criminal character, though a victim's apparent willingness to participate in communications may be a relevant contextual factor in assessing the degree of culpability.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(1), 66C(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23, s 166

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Dinsdale v R (2000) 202 CLR 321
- R v Osenkoski (1982) 30 SASR