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District Court 19 October 2020

R v Clarke

[2020] NSWDC 692

Sexual offences

Citation: R v Clarke [2020] NSWDC 692
Court: District Court of New South Wales
Date: 19 October 2020
Judge: Bennett SC DCJ

Background

The offender was convicted at a judge-alone trial of two counts of sexual intercourse with a child under ten years of age (contrary to s 66A(1) of the Crimes Act 1900) and one count of indecent assault on a child under 16 (contrary to s 61M(2)). The victims were two sisters, aged six or seven years old at the time of the offending, which occurred between January and October 2016 at a residential unit complex in Leumeah, New South Wales.

This was the offender's second trial. He had previously been convicted by a jury before Judge Noman SC, who sentenced him in May 2018. The Court of Criminal Appeal allowed his conviction appeal, finding a risk of miscarriage arising from the Crown Prosecutor's submissions to the jury concerning the offender's police interview responses. The matter was remitted to the District Court for retrial.

At retrial, Bennett SC DCJ conducted a judge-alone trial and again found the offender guilty on all three counts. The sentencing proceedings followed, and the judge delivered reasons on 19 October 2020.

  • What sentences were appropriate for three serious child sexual offences following conviction at a retrial?
  • Whether the sentencing indications given by the first trial judge (Judge Noman SC) should be adopted, increased, or reduced at the retrial sentencing.
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • What weight, if any, should be given to psychological reports that relied on the offender's own self-reporting, where the offender did not give evidence and maintained a denial of guilt.

Decision

Bennett SC DCJ accepted the Crown's position that the sentences imposed by Judge Noman SC were appropriate and declined to increase them. The judge noted that, while the two trials were not identical in all respects, the differences did not warrant any departure upward from the earlier sentence. Adopting the earlier sentencing indications was treated as the appropriate approach, consistent with the principle that a successful appeal should not result in a heavier sentence on retrial.

On the question of the psychological evidence, the judge exercised considerable caution. The offender had not given evidence at trial or at the sentencing hearing, and the psychological reports relied substantially on his own account of his background and experiences. Because the judge had no opportunity to assess the offender's credibility directly, and because the offender continued to deny the offending, the judge declined to place significant weight on the subjective material drawn from those reports.

The judge found the two child complainants to be compelling and truthful witnesses, a finding that was central to the guilty verdicts. The sentencing then proceeded on the basis that the offending was objectively serious, involving sexual abuse of two young sisters within a context of trust built through a friendship with their grandmother.

Special circumstances were found to exist, on the basis that the offender would require an extended period of supervised parole to assist his reintegration into the community, particularly given his age at the time he would become eligible for release.

Orders Made

  • Count 2 (indecent assault): 6 years imprisonment with a non-parole period of 3 years.
  • Count 1 (sexual intercourse with child under 10, victim TO): 8 years imprisonment with a non-parole period of 5 years.
  • Count 3 (sexual intercourse with child under 10, victim SO): 10 years imprisonment with a non-parole period of 6 years.
  • Aggregate sentence of 12 years imprisonment with a non-parole period of 8 years, commencing 27 October 2016.
  • Non-parole period to expire 26 October 2024; overall sentence to expire 26 October 2028.
  • Special circumstances found.

Key Takeaways

  • Where a matter is remitted for retrial following a successful conviction appeal, the sentencing court on retrial may adopt the sentence imposed at first instance rather than imposing an increased sentence, reflecting the principle that a successful appeal should not leave an offender worse off.
  • Psychological reports based primarily on an offender's self-reporting attract limited weight where the offender has not given evidence, has denied the offending, and the sentencing judge has had no opportunity to assess credibility directly.
  • A finding of special circumstances can be supported by the offender's age and the corresponding need for an extended period of community supervision to assist reintegration after a lengthy custodial term.
  • The District Court treated the objective seriousness of the offending as high, given the ages of the victims (six to seven years old), the multiplicity of offences, and the exploitation of access gained through a social relationship with the children's family.
  • Convictions at a judge-alone retrial can rest on the court's direct assessment of the complainants as compelling and truthful witnesses, even where the accused maintains denial and does not give evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(1), 61M(2)
- Criminal Procedure Act 1986 (NSW), ss 132, 166
- Sentencing Act 1989 (NSW)

Cases
- Davies v The Queen [2019] NSWCCA 45
- Imbornone v R [2017] NSWCCA 144
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- R v Qutami [2001] NSWCCA 353
- Shannon v R [2006] NSWCCA 39
- Tepania v The Queen [2018] NSWCCA 247
- TO v R [2017] NSWCCA 12
- CCA appeal by the offender: [2019] NSWCCA 234 (restricted)