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District Court 3 December 2020

R v Swain

[2020] NSWDC 911

Sexual offences

Citation: R v Swain [2020] NSWDC 911
Court: District Court of New South Wales
Date: 3 December 2020
Judge: Bright DCJ

Background

The offender, a 39-year-old man, appeared for sentence on five sexual offences against two child complainants. Four offences related to a complainant (HK) who was 10 years old at the time of the offending, which occurred over the Christmas holiday period in 1995 at residences in Mangrove Mountain. The offender was HK's half-brother and was 14 years old when those offences were committed. The fifth offence concerned a different complainant (JS), aged 12, and was committed in 2017 when the offender was an adult living with JS and her mother in a domestic family setting.

The offending against HK involved multiple incidents of aggravated indecent assault and an act of indecency, including digital penetration and forced contact with the offender's penis. The offending against JS occurred while JS was asleep in her bed. The offender digitally penetrated JS and, when confronted by her, falsely claimed she had consented.

The matter proceeded to trial in the Gosford District Court in June 2020 on eight counts involving three complainants. On day four of the trial, and before HK had been called to give evidence, the offender pleaded guilty to the five counts on which he was ultimately sentenced. No further proceedings were taken in relation to the counts concerning a third complainant.

  • What discount, if any, applied to the guilty pleas given their timing during trial?
  • What weight should be given to the offender's age at the time of the historical offences (14 years old), including principles from Bugmy v R, in assessing objective seriousness and subjective circumstances?
  • How should the court balance the objective gravity of the offending against mitigating factors including the offender's youth at the time of the 1995 offences?
  • Whether an aggregate sentence was appropriate, and if so, what non-parole period should apply, including whether special circumstances existed to justify varying the standard ratio?
  • How should current sentencing patterns and practices apply to historical offences, pursuant to s 25A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)?

Decision

Bright DCJ found that the guilty pleas were entered late in the proceedings. Because JS had already given evidence at trial by the time the pleas were entered, no discount was applied to the sentence for Count 7 (the offence against JS). A 5% discount was applied to the sentences for Counts 1 to 4 relating to HK, on the basis that HK had not yet given evidence when the pleas were entered.

The court treated the offender's age of 14 at the time of the 1995 offences as a significant mitigating factor. Consistent with principles established in Bugmy v R, the court acknowledged that moral culpability for offences committed during adolescence must be assessed differently from adult offending. This was reflected in the indicative terms fixed for those counts, each of which was well below the applicable statutory maximum.

For the 2017 offence against JS (Count 7), the court applied the standard non-parole period of 9 years as a reference point, ultimately fixing an indicative term of 6 years with a non-parole period of 4 years. This reflected the serious nature of the offending, which was committed by an adult in a position of trust within the family home. The court applied s 25A(1) of the Crimes (Sentencing Procedure) Act 1999, sentencing in accordance with current patterns and practices rather than those applicable at the time of the historical offences, and had regard to the now well-understood trauma of childhood sexual abuse.

The court imposed an aggregate sentence under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999. It found special circumstances under that Act, justifying a variation of the standard ratio between the non-parole period and the balance of the sentence. The variation was intended to allow the offender a longer period on parole to access treatment and support following release.

Orders Made

  • The offender was convicted on all five counts.
  • An aggregate sentence of 7 years imprisonment was imposed, backdated to commence on 29 November 2018 and to expire on 28 November 2025.
  • A non-parole period of 4 years and 8 months was fixed, commencing 29 November 2018 and expiring 28 July 2023.
  • The earliest date of eligibility for parole was fixed as 28 July 2023.
  • Special circumstances were found, resulting in a varied ratio between the non-parole period and the parole period to facilitate access to treatment upon release.

Key Takeaways

  • A guilty plea entered after some complainants have already given evidence at trial will attract no discount in relation to those complainants, while a partial discount may still apply in respect of complainants who had not yet been called.
  • Under s 25A(1) of the Crimes (Sentencing Procedure) Act 1999, courts sentence for historical offences in accordance with sentencing patterns and practices at the time of sentencing, not at the time the offence was committed.
  • The District Court confirmed that an offender's age at the time of historical juvenile offending is a significant mitigating factor, consistent with Bugmy v R, and operates to reduce moral culpability even where the conduct was objectively serious.
  • Special circumstances permitting a departure from the standard non-parole period ratio may be found where a longer parole period is needed to facilitate the offender's access to post-release treatment.
  • Where offending involves a position of trust within a domestic family setting, that circumstance is likely to weigh in the assessment of objective gravity, particularly for adult offending against children.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61O(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25A(1), 53A(1), 53A(2)(b), 54B(2)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Bugmy v R (2013) 249 CLR 571
- Cahyadi v R (2007) 168 A Crim R 41
- Imbornone v R [2017] NSWCCA 144
- R v Dent (unreported, NSWCCA, 4 March 1991)
- R v Nelson [2016] NSWCCA 130