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District Court 27 March 2020

R v Grimmer

[2020] NSWDC 63

Sexual offences
SENTENCE LATE PLEA OF GUILTY

Citation: R v Grimmer [2020] NSWDC 63
Court: District Court of New South Wales
Date: 27 March 2020
Judge(s): Weinstein SC DCJ

Background

The offender, a man born in 1964, was sentenced for three counts of indecent assault of a person under 16 years of age, contrary to s 61M(2) of the Crimes Act 1900. Each offence carries a maximum penalty of 10 years imprisonment and a standard non-parole period of 8 years.

The victim, born in 2001, was 14 years old at the time of the offending. She had known the offender since she was nine years old and described him as a father figure. The offending took place at a caravan park during school holiday periods in 2016, where both the victim and the offender were regular visitors. The offender was acquainted with the victim's grandmother and a family friend with whom the victim stayed.

The offences spanned the Easter and September school holidays of 2016. They included the offender isolating the victim from other children, kissing her on the lips, touching her breasts and genitals, and taking her out on a boat under a false pretext before sexually assaulting her. The victim eventually disclosed the offending to a friend, then to a family friend, who confronted the offender. The offender ultimately pleaded guilty, having made partial admissions in his police interview.

  • What aggregate sentence was appropriate for three counts of aggravated indecent assault of a child?
  • What discount was appropriate in light of a late guilty plea?
  • How should mitigating factors, including the offender's background, low reoffending risk, and psychological reports, bear on the sentence?
  • How should the indicative sentences for each count be structured under an aggregate sentencing regime?

Decision

Weinstein SC DCJ imposed an aggregate sentence of imprisonment rather than any non-custodial alternative, being satisfied that no other option was appropriate for offending of this nature. The judge applied the two legislative guideposts under the Crimes (Sentencing Procedure) Act 1999: the 10-year maximum penalty and the 8-year standard non-parole period for each offence, in accordance with Muldrock v The Queen (2011) 244 CLR 120.

The judge acknowledged several mitigating factors: the offender had an effectively clean criminal record, had been employed with the same employer for 27 years, was assessed at a low to medium risk of reoffending, and had engaged in psychological counselling. Against this, the court noted that the offender had minimised the seriousness of his conduct, was unable to identify the impact of his offending on the victim, and had expressed greater concern about the financial and personal consequences to himself than about harm to the victim.

A discount of 12.5 percent was applied to reflect the late guilty plea, consistent with Mill v The Queen (1988) 166 CLR 59. The sentence was structured as an aggregate under s 53A of the Crimes (Sentencing Procedure) Act 1999, with indicative individual sentences set out as required by s 53A(2)(b).

Orders Made

  • Convicted of three counts of indecent assault of a person under 16 years of age, contrary to s 61M(2) of the Crimes Act 1900.
  • Aggregate sentence of imprisonment of 3 years and 2 months, commencing 27 March 2020.
  • Non-parole period of 2 years, expiring 26 March 2022.
  • Head sentence expiring 26 May 2023.

Indicative individual sentences (before discount):
- Sequence 3 (Count 4): 3 years, reduced to approximately 2 years 7 months (NPP: 1 year 7 months)
- Sequence 1 (Count 5): 3 years, reduced to approximately 2 years 7 months (NPP: 1 year 7 months)
- Sequence 5 (Count 6): 2 years 6 months, reduced to approximately 2 years 2 months (NPP: 1 year 3 months)

Key Takeaways

  • A late guilty plea attracted a discount of only 12.5 percent, reflecting the limited utilitarian value of a plea entered at that stage, consistent with the principles in Mill v The Queen.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, a sentencing court imposing an aggregate term must also set out indicative sentences for each individual count to ensure transparency and proportionality.
  • Applying Muldrock, the standard non-parole period of 8 years and the maximum of 10 years function as legislative guideposts to be weighed alongside all other relevant factors, not as presumptive starting points.
  • An offender's inability to identify the impact of the offending on the victim, and apparent preoccupation with personal consequences over harm to the victim, featured in the court's assessment of the offender's culpability and remorse.
  • Low assessed risk of reoffending, stable employment history, and engagement with psychological treatment were recognised as mitigating factors, though they did not displace the need for a full-time custodial sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 53A and 53A(2)(b)

Cases:
- Markarian v The Queen [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen (2011) 244 CLR 120
- R v Jarrold [2010] NSWCCA 69