Citation: R v Carrington (a pseudonym) [2020] NSWDC 748
Court: District Court of New South Wales
Date: 29 October 2020
Judge: Colefax SC DCJ
Background
The offender, referred to by pseudonym, appeared for sentence on five principal offences committed against his own daughter over a period of years. The offending began when the victim was 13 years old and continued into her adulthood. A pseudonym was used to protect the identity of the victim.
The offences spanned two broad categories. The first involved serious physical violence: the offender repeatedly beat his daughter with a leather belt, including the buckle, on multiple occasions when he discovered she had contact with boys. The second involved sexual offending, including inciting an act of indecency upon the victim when she was 13, and three counts of incest committed after she turned 16.
Five additional matters were placed on Form 1 notices to be taken into account on sentence. These included two further assaults occasioning actual bodily harm, one aggravated indecent assault, and two further counts of incest.
Legal Issues
- What aggregate sentence was appropriate for five principal offences of assault occasioning actual bodily harm, aggravated act of indecency, and incest, having regard to the Form 1 matters?
- What discount, if any, should be applied to reflect the offender's early guilty plea?
- Whether special circumstances existed to justify a variation of the standard ratio between non-parole period and total sentence.
- What indicative sentences should underpin the aggregate term?
Decision
Colefax SC DCJ sentenced the offender to an aggregate term of 16 years imprisonment, with a non-parole period of 12 years. The sentence was backdated by nine months to 29 January 2020 to account for time already spent in custody following the refusal of bail.
His Honour assessed the assault at sequence 1 (the belt beating of the 13-year-old) as above the mid-range for its kind, with an indicative pre-discount sentence of four years. The aggravated act of indecency (the forced "virginity examination") was also assessed as above the mid-range, with the Form 1 assaults meaningfully increasing the indicative sentence for that count to five years before discount. Each of the three incest counts attracted an indicative pre-discount sentence of seven years, with associated Form 1 matters taken into account.
A discount of 25% was applied to each indicative sentence to reflect the utilitarian value of the early guilty pleas. His Honour expressly found that the pleas did not contain any element of genuine remorse, and so the discount reflected utilitarian value only.
The application for a finding of special circumstances was rejected. His Honour was satisfied that the four-year balance of term remaining after the non-parole period would provide sufficient opportunity for the offender to reintegrate into the community upon release.
Orders Made
- Aggregate sentence of 16 years imprisonment imposed.
- Non-parole period of 12 years, commencing 29 January 2020 and expiring 28 January 2032.
- Balance of term of 4 years, commencing 29 January 2032 and expiring 28 January 2036.
- Sentence backdated to 29 January 2020 to account for pre-sentence custody.
- Application for special circumstances refused.
Key Takeaways
- The District Court treated the repeated use of a belt on a child, including strikes with the buckle, as falling above the mid-range for assault occasioning actual bodily harm, warranting a substantial indicative sentence of four years before discount.
- A 25% discount for an early guilty plea is available even where the court is not satisfied the plea reflected genuine remorse; the discount reflects utilitarian value to the justice system rather than the offender's contrition.
- Form 1 matters can produce a "meaningful" or "significant" increase to the sentence for the principal offence to which they attach, particularly where the Form 1 matter is of a serious nature related to the principal offence.
- Refusing special circumstances, the court confirmed that a standard parole period need not be extended merely because an offender will need assistance reintegrating after a lengthy term; a four-year parole period was found sufficient for that purpose.
- Where a victim is present in the courtroom, the court may choose to deliver reasons ex tempore to spare the victim the distress of further delay, even where reserved reasons might be more carefully crafted.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): s 59(1) (assault occasioning actual bodily harm), s 61O(1) (aggravated act of indecency, repealed), s 78A(1) (incest)
Cases:
- WC v R [2016] NSWCCA 173