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District Court 18 December 2020

R v Peckover

[2020] NSWDC 861

Sexual offences

Citation: R v Peckover [2020] NSWDC 861
Court: District Court of New South Wales
Date: 18 December 2020
Judge(s): R. J. Weber SC DCJ

Background

The offender was a volunteer at Charlton Boy's Home, a residential facility in Ashfield, during the late 1970s and early 1980s. He assisted residents by supervising homework and taking boys on outings, and was trusted enough by the institution to take residents on overnight and weekend trips. The boys in his care were troubled children from difficult family backgrounds, many of whom had come into contact with the Children's Court.

The offender faced an indictment of 26 counts relating to five complainants. Following a contested trial and a series of guilty pleas entered at different stages of proceedings, he was ultimately convicted of 10 counts across three victims: one count of buggery and nine counts of indecent assault. The jury acquitted him on the remaining counts, and two counts were dismissed by direction.

The sentencing required the court to address the significant procedural complexity arising from guilty pleas entered at different stages, the varying ages of the victims at the time of the offences, and the serious aggravating circumstances common to all the offending.

  • What discount, if any, applied to guilty pleas entered at different procedural stages (early Local Court pleas versus pleas entered on the morning of trial)?
  • What were the appropriate indicative sentences for each of the 10 counts, taking into account aggravating and mitigating factors?
  • How should the four Form 1 offences be taken into account in the sentencing exercise?
  • What aggregate sentence was appropriate given the principles of totality, special circumstances, and the need for both general and specific deterrence?
  • Whether special circumstances existed to justify adjusting the ratio of non-parole period to head sentence.

Decision

The court found that the pleas entered in the Local Court in relation to five counts attracted a 25 per cent discount for their utilitarian value as early pleas. The three pleas entered on the morning of trial attracted a 10 per cent discount only. The two jury verdicts of guilty received no discount.

The court identified significant aggravating factors across all the offending. The victims were vulnerable, being troubled boys in residential care who lacked stable family support. The offender had abused a position of trust conferred on him by the institution. Victim impact statements confirmed the substantial and lasting harm caused to the victims.

Applying the instinctive synthesis method endorsed by the High Court in Markarian v The Queen, the court arrived at indicative sentences for each count ranging from 10 months to 6 years and 9 months, with the most serious indicative sentence imposed in relation to the buggery count against the victim MS. The four Form 1 offences were taken into account alongside the relevant head counts.

The court imposed an aggregate sentence, as required by the Crimes (Sentencing Procedure) Act 1999 (NSW), rather than individual cumulative terms. The judge found special circumstances that justified a non-parole period representing a greater proportion of supervision time on release, given the need for the offender to reintegrate into the community after a lengthy period of custody.

Orders Made

  • The offender was sentenced to an aggregate term of imprisonment of 9 years, with a non-parole period of 6 years.
  • The sentence was backdated to commence on 11 March 2018.
  • The non-parole period expires on 10 March 2024, with the balance of the sentence expiring on 10 March 2027.

Key Takeaways

  • The District Court confirmed that guilty pleas entered at different procedural stages attract materially different discounts: pleas indicated in the Local Court may warrant 25 per cent, while pleas entered on the morning of trial warrant only 10 per cent.
  • Where an offender holds a position of trust or authority over vulnerable child victims, that is a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW) and will bear heavily on the sentencing exercise.
  • Form 1 offences, while not the subject of conviction, are formally taken into account in setting the indicative sentence for the associated count and contribute to the overall weight of the sentencing exercise.
  • Under the aggregate sentencing regime in s 53A of the Crimes (Sentencing Procedure) Act, courts must still provide indicative sentences for each individual offence; those indicative sentences are head sentences rather than sentences broken into parole and non-parole components.
  • Special circumstances can justify a departure from the standard non-parole period ratio, particularly where a lengthy aggregate sentence means the offender will require structured supervision and support upon eventual release into the community.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E(1), 79, 81
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases
- Markarian v The Queen (2005) 228 CLR 357
- Dimian v R [2016] NSWCCA 223
- R v Fisher (1989) 40 A Crim R 442