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District Court 9 December 2020

R v Scholten

[2020] NSWDC 866

Sexual offences
CRIME SENTENCE INDECENT ASSAULT (UNDER 16 YEARS) S61M(2) LATE PLEA

Citation: R v Scholten [2020] NSWDC 866
Court: District Court of New South Wales
Date: 9 December 2020
Judge: Wilson SC DCJ

Background

The offender, a man born in October 1969, appeared for sentence after pleading guilty to a single count of indecent assault upon a person under the age of 16 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 10 years' imprisonment and a standard non-parole period of 8 years.

The victim was a nine-year-old girl who had attended a sleepover at the offender's aunt's home in July 2018. The offender, while lying in a bed alongside the victim and his own daughter, slid his hand inside the victim's shorts and rubbed her vagina on bare skin for approximately two minutes. The victim told him to stop multiple times, but he continued. She then left the bed, changed her clothing, and slept elsewhere in the room.

The offender was arrested in January 2019 but did not plead guilty until 14 September 2020, on the day his trial was listed to commence. The guilty plea resolved two counts on the indictment. He had been in custody since 12 March 2020.

  • What was the appropriate commencement date for the sentence, taking into account time already served in custody on unrelated matters and the principle of totality?
  • Whether drug use at the time of the offending reduced the offender's moral culpability, as suggested by the psychologist's report.
  • Whether the offender had demonstrated remorse in the statutory sense.
  • How the standard non-parole period of 8 years should inform the sentence, given the objective seriousness of the offending.
  • What discount, if any, applied to the sentence on account of the late guilty plea.

Decision

Commencement date. The offender had been serving an unrelated custodial sentence until 6 October 2020, at which point he began serving time referable solely to the current charge. However, he had also been bail refused on this matter from 12 March 2020. Following submissions from both parties and a revised calculation, the District Court determined that a commencement date of 25 June 2020 appropriately addressed totality concerns.

Drug use and moral culpability. The psychologist's report identified methamphetamine use as a contributing factor to reduced impulse control at the time of the offending. Wilson SC DCJ rejected this opinion in the absence of sworn evidence from the offender himself. The court declined to treat drug use as a mitigating factor on culpability.

Remorse. The offender reportedly expressed remorse to the psychologist and claimed he had no memory of the incident due to drug use. The court declined to find remorse in the statutory sense, noting that out-of-court statements, without the offender giving evidence, were insufficient to establish it.

Objective seriousness and the standard non-parole period. The court assessed the offending as at or slightly above the mid-range of objective seriousness. Wilson SC DCJ confirmed that the standard non-parole period, while a relevant guidepost, does not operate as a mandatory minimum. Following the synthesis approach described by McHugh J in Markarian v R, the court considered all objective and subjective factors together. The offender received a 5% discount for his guilty plea, reflecting its lateness. His criminal history, while not aggravating the nature of this offence, precluded any finding of good character. The court found that full-time imprisonment was the only appropriate sentencing option.

Orders Made

  • The offender was convicted of indecent assault of a person under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW).
  • Sentenced to imprisonment comprising a non-parole period of 2 years, commencing 25 June 2020 and expiring 24 June 2022.
  • Balance of term of 1 year, resulting in a head sentence of 3 years, expiring 24 June 2023.

Key Takeaways

  • A psychologist's opinion that drug use reduced the offender's impulse control at the time of offending will not be accepted as mitigating culpability without sworn evidence from the offender supporting that account.
  • Out-of-court expressions of remorse, relayed through a forensic psychologist's report, are insufficient to establish remorse in the statutory sense where the offender does not give evidence.
  • Under the approach in Markarian v R, the standard non-parole period functions as a guidepost rather than a mandatory minimum; a finding that the offending sits at or slightly above mid-range does not compel its direct application.
  • A guilty plea entered on the first day of trial attracted only a 5% discount, reflecting the limited utilitarian value of such a late plea.
  • A lengthy criminal history involving different offence types does not aggravate the seriousness of a sexual offence, but it does disentitle the offender to any leniency flowing from good character.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A

Cases:
- Markarian v R [2005] HCA 25