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District Court 15 December 2020

R v POUT

[2020] NSWDC 751

Sexual offencesAssault & violencePublic order & justice offences
CRIME PROPERTY OFFENCES PUBLIC JUSTICE OFFENCES SENTENCING PROCEDURE AGGREGATE SENTENCES REASONS FOR SENTENCE SENTENCING

Citation: R v Pout [2020] NSWDC 751
Court: District Court of New South Wales
Date: 15 December 2020
Judge: Lerve DCJ

Background

The offender, a man living in a unit adjoining his victim's home in Wagga Wagga, pleaded guilty to a series of serious offences arising from events on 17 August 2018. On that day, he forced his way into the victim's unit while she was home alone with her infant daughter, threatened to kill both of them, and committed three separate acts of sexual intercourse without consent. The offences involved significant physical violence and threats directed at the victim and her child.

A fourth set of charges arose from a separate incident on 17 March 2020, when the offender, by then in custody at Junee Correctional Centre, assaulted a fellow inmate causing actual bodily harm. The prosecution elected to have that matter dealt with on indictment so it could be taken into account alongside the earlier offending.

The offender also asked the court to take into account, on a Form 1 (a document listing related offences to be considered at sentencing without a separate conviction), one count of threatening or intimidating a witness contrary to s 315A(1) of the Crimes Act 1900. Guilty pleas were entered in the Local Court and adhered to in the District Court, attracting a full 25 per cent utilitarian discount.

  • What aggregate sentence was appropriate across five convictions spanning two separate episodes of offending, including three aggravated sexual assault charges each carrying a maximum of 20 years?
  • How should the Form 1 offence of threatening a witness be reflected in the overall sentence?
  • Whether special circumstances existed to justify a non-parole period that represents less than the standard 75 per cent ratio of the total sentence.
  • What weight should be given to the offender's subjective circumstances, including age, mental health, and background, when measured against the gravity of the offending?
  • How the principle of totality should be applied when structuring an aggregate sentence across multiple serious offences.

Decision

Lerve DCJ sentenced the offender on the basis of agreed facts and found the offending on 17 August 2018 to be extremely serious. The break and enter occurred in the victim's own home in the presence of her infant child. The sexual assaults were multiple and accompanied by sustained threats to kill both the victim and her baby. The presence of the child was an aggravating factor, as was the fact that the offending occurred in the victim's home.

The court assessed indicative sentences for each count individually before constructing the aggregate. For the most serious count (aggravated sexual intercourse with reckless infliction of actual bodily harm, taking in the Form 1 threatening-a-witness matter), the indicative sentence was 8 years 3 months with a non-parole period of 5 years 2 months. The two counts of aggravated sexual intercourse involving the break-in as the circumstance of aggravation each drew indicative sentences of 7 years 6 months. The break-and-enter count drew 2 years 7 months, and the in-custody assault drew 1 year 10 months.

Applying the totality principle, which requires that the overall sentence reflect the full criminality of the conduct without being crushing, the court imposed an aggregate sentence of 13 years. The court found special circumstances, noting in particular the need for an extended period of supervised parole given the nature of the offending and the offender's circumstances. This reduced the non-parole period to approximately 63 per cent of the total sentence rather than the standard 75 per cent. The court nonetheless indicated that it would recommend the offender's release to parole at the expiration of the non-parole period.

Orders Made

  • The offender was convicted of all matters to which he pleaded guilty.
  • An aggregate sentence of 13 years imprisonment was imposed.
  • Non-parole period of 8 years and 3 months, commencing 19 August 2018 and expiring 18 November 2026.
  • Balance of term of 4 years and 9 months, commencing 19 November 2026 and expiring 18 August 2031.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.
  • A finding of special circumstances was made, producing a non-parole period of approximately 63 per cent of the total sentence.

Key Takeaways

  • The District Court applied the totality principle to multiple serious offences spanning two incidents, setting an aggregate sentence lower than the sum of the individual indicative sentences to avoid a crushing outcome.
  • Under the Form 1 procedure confirmed in the Attorney General's Application No. 1 of 2002 guideline judgment, the threatening-a-witness offence was required to have some, though not significant, impact on the sentence for the most relevant count.
  • Aggravating factors under the Crimes Act, including the offending occurring in the victim's home and in the presence of a child, were given substantial weight in the indicative sentencing for each count.
  • A finding of special circumstances permitted the non-parole period to sit at approximately 63 per cent of the total sentence, below the statutory default of 75 per cent, reflecting the need for an extended period of supervised parole.
  • In-custody offending, here an assault occasioning actual bodily harm committed at Junee Correctional Centre, can be dealt with on indictment alongside earlier offences pursuant to s 58 of the Crimes (Sentencing Procedure) Act 1999, and its commission will be reflected in the overall aggregate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61J(1), 112(2), 315A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 37, 58

Cases
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146 (Form 1 Guideline Judgment)
- Muldrock v The Queen [2011] HCA 39
- Bugmy v The Queen [2013] HCA 37
- Hili & Jones v The Queen [2010] HCA 45
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Aslan v R [2014] NSWCCA 114
- Black v R [2013] NSWCCA 265
- Brown v R [2014] NSWCCA 215
- Bullock v R [2016] NSWCCA 131
- Cole v R [2010] NSWCCA 227
- Currie v R [2013] NSWCCA 267
- Dungay v R [2020] NSWCCA 209
- Gore v R; Hunter v R (2010) 208 A Crim R 353
- Herbert v R [2015] NSWCCA 172
- Higgins v R [2020] NSWCCA 169
- Hunter v R [2011] NSWCCA 141
- Jolly v R [2013] NSWCCA 76
- Keeley v R [2014] NSWCCA 139
- Locke v R (2010) 207 A Crim R 34
- McCullough v R [2009] NSWCCA 94