Citation: R v Flood [2020] NSWDC 626
Court: District Court of New South Wales
Date: 7 April 2020
Judge(s): Bennett SC DCJ
Background
The offender, a man born in 1952, appeared for sentencing on a single charge of indecent assault under the now-repealed s 76 of the Crimes Act 1900. The offence occurred between November 1975 and February 1976 near Boggabri, New South Wales, when the offender was aged 24 to 25. The complainant, referred to by her initials to protect her privacy, was his niece and was between 12 and 13 years old at the time.
The offence involved the offender separating the complainant from her siblings during a swimming outing and placing his erect penis in the cleft of her buttocks beneath a willow tree on the family property. The offender made admissions about the conduct during a pretext phone call in June 2018 and again in a formal interview following his arrest in September 2018. The complainant had first disclosed the incident to her husband in 1984, but a formal police statement was not made until January 2018, more than four decades after the events.
The offender pleaded guilty on arraignment. He had spent no time in custody awaiting sentence.
Legal Issues
- What sentence was appropriate for a historical indecent assault committed under a repealed provision, given the offender's age, health, personal history, and plea of guilty?
- Whether a non-custodial sentence was available and appropriate, having regard to s 5 of the Crimes (Sentencing Procedure) Act 1999 (which requires a court to consider all alternatives before imposing imprisonment)?
- What weight should be given to the offender's significant medical conditions, family circumstances, prior good character, and his own history of childhood sexual abuse?
Decision
Bennett SC DCJ sentenced the offender to a three-year supervised Community Corrections Order, recording a conviction. The Court accepted that the matter could be resolved without a custodial sentence after weighing all relevant factors under s 5 of the Crimes (Sentencing Procedure) Act 1999.
The Court gave significant weight to the offender's personal circumstances. At the time of sentencing the offender was approaching 70 years of age and had been diagnosed in late 2018 with myelodysplastic syndrome, a bone marrow disorder described as a precursor to leukaemia requiring ongoing care for the remainder of his life. The Court noted that imprisonment would present heightened health risks, including an elevated susceptibility to infection. The judgment expressly acknowledged the additional risk posed by the coronavirus pandemic, which was current at the time of sentencing.
The offender's prior good character was a significant mitigating factor. He had effectively no criminal history, a consistent employment record spanning decades in rural industries, long-term community involvement, and strong family support. His wife remained supportive despite the considerable pressure the prosecution had placed on their marriage and finances. The Court accepted a forensic psychologist's report from Patrick Sheehan and was satisfied it could rely on its contents, while observing the caution required when acting on unsworn representations in such reports.
The Court also took into account the offender's own history of childhood sexual abuse between the ages of seven and fourteen, his guilty plea entered on arraignment, and the fact that no similar offending had been detected before or since the single incident. The offender's wife's limited mobility and driving capacity, which would affect her ability to visit him if imprisoned, was treated as a relevant though not exceptional hardship.
Orders Made
- The offender was convicted of the offence to which he pleaded guilty.
- A Community Corrections Order was imposed for a period of three years, commencing 7 April 2020.
- The Order was to be supervised, with the standard conditions under s 88 of the Crimes (Sentencing Procedure) Act 1999 applying: the offender must not commit any offence and must appear before the Court if called upon during the term of the Order.
- Due to coronavirus restrictions at the time, initial reporting to Community Corrections was to be conducted by telephone.
- Exhibits were left on file for the parties' use.
Key Takeaways
- The District Court confirmed that a non-custodial sentence remains available for serious historical sexual offences where the full range of mitigating factors, including age, health, prior good character, and plea, cumulatively supports that outcome under s 5 of the Crimes (Sentencing Procedure) Act 1999.
- A diagnosis of a serious and progressive medical condition (here, myelodysplastic syndrome) can constitute a meaningful factor in sentencing, particularly where imprisonment would create elevated health risks, including those associated with an infectious disease pandemic.
- Forensic psychological reports may be acted upon in sentencing even where the offender has not given sworn evidence, though the caution identified in R v Qutami [2001] NSWCCA 353 regarding unsworn representations remains applicable.
- An offender's own history of childhood sexual victimisation is a circumstance the court may take into account when assessing moral culpability, without it diminishing the gravity of the offence or the victim's experience.
- Guilty pleas entered on arraignment, an absence of prior offending, and sustained community contribution over many decades collectively carried significant weight in the sentencing exercise, even for an offence involving a child complainant and a serious breach of familial trust.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 76 (repealed); s 556A (repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 88; Part 4 Div 1A
Cases
- DBW v R [2007] NSWCCA 236
- MJR (2002) 54 NSWLR 368
- R v King [2009] NSWCCA 117
- R v Qutami [2001] NSWCCA 353
- Tepania v The Queen [2016] NSWCCA 247