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District Court 23 November 2020

R v Cannon

[2020] NSWDC 901

Sexual offences

Citation: R v Cannon [2020] NSWDC 901
Court: District Court of New South Wales
Date: 23 November 2020
Judge: Bennett SC DCJ

Background

The offender, Matthew David Cannon, faced 16 counts of sexual offending against a single complainant, referred to as EW, a child aged between 13 and 14 at the time of the offending. The offences were alleged to have occurred across six separate occasions between 1 January 2017 and 23 January 2018, at locations including Galston, Glenorie, and Arcadia in New South Wales.

The charges included multiple counts of indecent assault contrary to s 61M(2) of the Crimes Act 1900, one count of attempted sexual intercourse with a child aged between 10 and 16 contrary to s 66D, and one count of sexual intercourse with a child in that age range contrary to s 66C(3). Two trials were required after a disruption to the first jury.

Following a jury trial that concluded on 22 July 2020, the offender was convicted on 14 of the 16 counts (with the alternative count 14 not required for verdict, and an acquittal on count 7). The matter proceeded to sentencing, during which the court considered pre-sentence reports, the offender's periods of pre-sentence custody, and the significant bail conditions he had been subject to during periods at liberty.

  • What weight should be given to the offender's pre-sentence custody and periods subject to restrictive bail conditions when determining the sentence?
  • How should the individual sentences for 14 separate offences be structured and then aggregated to reflect the totality of the offending without resulting in a crushing sentence?
  • Whether and to what extent the standard non-parole period provisions applied, given that some offences carried a standard non-parole period (s 61M(2) offences) while the attempted sexual intercourse offence under s 66D did not.

Decision

The District Court convicted the offender on 14 counts following jury verdicts. The court then turned to the sentencing exercise, which required careful accounting for two separate periods of pre-sentence custody totalling 497 days as at 18 September 2020, plus further time during the sentencing proceedings themselves.

On the question of bail conditions, the court noted that the restrictive conditions imposed on the offender during the period he was at liberty had effectively prevented him from living with his de facto partner and children. Applying the principles in Hoskins v R [2016] NSWCCA 157, the court brought those conditions into account in assessing the indicative sentences, without specifying a precise additional period of time for them.

The court imposed individual indicative sentences for each of the 14 offences, ranging from 2 years to 4 years imprisonment, with non-parole periods specified for all offences that carried a standard non-parole period. For count 13 (attempted sexual intercourse, contrary to s 66D), no non-parole period was required to be specified, as that offence does not attract a standard non-parole period.

Applying the totality principle, the court aggregated the individual sentences into a single aggregate sentence. The court also noted the pre-sentence reports and observed that it recommended the offender be considered for release at the expiration of the non-parole period, subject to his conduct in custody.

Orders Made

  • Aggregate sentence imposed with a non-parole period of 7 years, commencing 10 May 2019, expiring 18 May 2026.
  • A further period of imprisonment during which the offender is eligible for parole of 4 years, expiring 18 May 2030.
  • Indicative sentences specified for each count, ranging from 1 year 9 months (counts 1 to 4) to 4 years (counts 11 and 13), with corresponding non-parole periods where applicable.
  • The court recommended the offender be released at the expiration of the non-parole period, subject to conduct in custody.
  • Exhibits left on file in anticipation of possible appeal proceedings.

Key Takeaways

  • Restrictive bail conditions that materially curtail an offender's liberty, including conditions preventing cohabitation with a partner and children, are a relevant factor in the sentencing exercise and may reduce the weight given to time spent on bail, following Hoskins v R [2016] NSWCCA 157.
  • Where an offender faces multiple counts of child sexual offending arising from a pattern of conduct over an extended period, the totality principle requires the court to aggregate individual sentences in a way that reflects the overall criminality without producing a disproportionate total sentence.
  • Under s 66D of the Crimes Act 1900, attempted sexual intercourse with a child aged between 10 and 16 carries a maximum of 10 years imprisonment but, unlike s 61M(2) offences, does not attract a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999.
  • Pre-sentence custody across multiple separate periods must be carefully identified and brought to account in fixing the commencement date of an aggregate sentence.
  • The District Court's recommendation for parole at the expiration of the non-parole period remained subject to the offender's conduct in custody and was not a guarantee of release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(3), 66D
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A
- Bail Act 2013 (NSW), ss 26, 29

Cases:
- Hoskins v R [2016] NSWCCA 157
- Markarian v R [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- R v Cartwright (1989) 17 NSWLR 243
- R v Webb [2004] NSWCCA
- R v Wicks [2005] NSWCCA 409
- Tepania v The Queen [2018] NSWCCA 247