Citation: R v Mizzi [2020] NSWDC 819
Court: District Court of New South Wales
Date: 19 November 2020
Judge: Norrish QC DCJ
Background
The offender was convicted by jury on 29 September 2020 of five offences committed against a 13-year-old victim at her family home in Tregear, New South Wales. The offences were found to have occurred in 2019. The offender was a family friend who visited the victim's home regularly, was known to her parents through a shared interest in tenpin bowling, and was referred to by the victim as "Uncle Lawrence."
The victim had a mild intellectual disability placing her in the bottom one percentile for her age group. Expert evidence indicated her verbal skills were equivalent to those of a child aged six and a half years, her non-verbal skills to those of a child aged five and a half, and her receptive communication to those of a child aged four and a half.
The five counts comprised one charge of aggravated sexual intercourse (Count 1, the most serious), one charge of inciting the victim to sexually touch the offender (Count 2), and three charges of sexual touching (Counts 3, 4, and 5). The offences occurred when the offender moved from the lounge room, where the victim's mother was present, into the victim's bedroom under the guise of saying hello to her.
Legal Issues
- What aggregate sentence was appropriate for five counts of child sexual offending, including one count carrying a standard non-parole period of nine years?
- How should the offender's personal circumstances, including his lack of prior convictions and the absence of any psychiatric or psychological factors, bear on the sentence?
- Whether the offences should be treated as representative counts spanning the full period pleaded in the indictment, or as a more confined period of offending.
- How to apply totality principles when imposing indicative sentences alongside an aggregate term.
Decision
His Honour found he could not be satisfied beyond reasonable doubt that the offending spanned the full five-month period pleaded in the indictment. The evidence was consistent with the offences having occurred within a short period before the victim disclosed them to her aunt, who then reported to police. The counts were not treated as representative counts.
On the most serious count, aggravated sexual intercourse with a child aged between 10 and 14 years in circumstances of aggravation (the victim's cognitive impairment), His Honour identified the victim's severe intellectual disability as a significant aggravating feature. The offender exploited the trust placed in him by the victim's family, entering her bedroom while her parents were present elsewhere in the home. No physical injury was established. The offender had no prior convictions and there were no relevant psychiatric or psychological factors.
His Honour applied the standard non-parole period of nine years for Count 1 as a reference point under the framework established in cases such as Muldrock v R, without treating it as a fixed or mandatory outcome. The indicative sentence for Count 1 was five years with a non-parole period of three years. Indicative sentences for the remaining four counts ranged from 18 months to two years.
Applying totality principles, including those in R v Holder, His Honour imposed an aggregate sentence to ensure the total term was proportionate to the overall criminality. The aggregate sentence was seven years' imprisonment with a non-parole period of four years and three months.
Orders Made
- The offender was convicted on all five counts.
- An aggregate sentence of seven years' imprisonment was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, commencing 4 August 2020 and expiring 3 August 2027.
- A non-parole period of four years and three months was fixed, commencing 4 August 2020 and expiring 3 November 2024, with eligibility for parole release on that date.
- Indicative sentences were recorded as follows:
- Count 1: five years' imprisonment with a non-parole period of three years
- Count 2: two years' imprisonment
- Count 3: one year and six months' imprisonment
- Count 4: one year and six months' imprisonment
- Count 5: one year and nine months' imprisonment
Key Takeaways
- The District Court declined to treat the counts as representative of a five-month period of offending where the evidence was equally consistent with a much shorter period, limiting the factual basis for sentence accordingly.
- A victim's severe cognitive impairment, expressly pleaded as a circumstance of aggravation under s 66C(2) of the Crimes Act 1900, was a weighty factor in the sentencing exercise, reflecting the heightened vulnerability of the victim.
- Absence of prior convictions and the lack of any psychiatric or psychological factors were noted as relevant personal circumstances, but did not substantially reduce the sentence given the seriousness of the primary offence and the vulnerability of the victim.
- Under the aggregate sentencing regime in s 53A of the Crimes (Sentencing Procedure) Act 1999, His Honour recorded indicative sentences for each count and then applied totality principles to arrive at a total term proportionate to the overall offending.
- The standard non-parole period of nine years for the principal offence operated as a legislative guidepost, not a fixed benchmark, consistent with the approach confirmed in Muldrock v R.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 66C(2), 66BB(a), 66BB(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases
- De La Rosa [2010] NSWCCA 194
- Hemsley v R [2004] NSWCCA 228
- Mill v R (1988) 166 CLR 59
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v Engert (1995) 84 A Crim R 67
- R v Holder [1983] NSWLR 245
- R v Johnson [2004] HCA 15; 78 ALJR 616
- R v Way [2004] NSWCCA 131