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District Court 7 April 2020

R v KR

[2020] NSWDC 93

Sexual offencesTheft & property

Citation: R v KR [2020] NSWDC 93
Court: District Court of New South Wales
Date: 7 April 2020
Judge: Priestley SC, DCJ

Background

The offender, a man in his mid-fifties with no prior criminal history, pleaded guilty to breaking and entering a dwelling house in circumstances of aggravation and committing a serious indictable offence, namely sexual intercourse without consent. The offending occurred in the early hours of 26 May 2019, when the offender entered the home of acquaintances and sexually assaulted a sleeping 16-year-old girl. A second act of sexual intercourse without consent was listed on a Form 1 to be taken into account at sentencing.

The offender had attended the hosts' home earlier that evening, uninvited but in a manner he regarded as within the bounds of an existing social relationship. He was notably intoxicated. After being asked to leave, he returned several hours later and committed the offences.

The sentencing hearing received evidence from a psychologist, character testimonials, and a victim impact statement. The offender had been in stable employment throughout his adult life, suffered no social disadvantage, and was well-regarded in his community. The victim was markedly affected by the offending.

  • What was the appropriate sentence for an offence under section 112(2) of the Crimes Act 1900 (break and enter with intent, in circumstances of aggravation), taking into account a Form 1 matter involving a second sexual assault?
  • Whether the standard non-parole period of five years applies where the offender pleaded guilty rather than being convicted after trial.
  • How to weigh the mid-range objective seriousness of the offending against a strong subjective case, including an early guilty plea, absence of prior criminal history, remorse, good character, and low risk of reoffending.
  • Whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and the balance of term.

Decision

Objective seriousness and the standard non-parole period: Both parties agreed the offending fell in the mid-range of objective seriousness, and Priestley SC DCJ accepted that characterisation. The relevant standard non-parole period for the charge under section 112(2) is five years. The court disagreed with counsel's submission that the standard non-parole period is irrelevant where the offender pleads guilty. Drawing on Muldrock v The Queen [2011] HCA 39, the court held that the obligations under Division 1A of the Crimes (Sentencing Procedure) Act 1999 apply to all Division 1A offences regardless of whether the matter was resolved by trial or plea. The standard non-parole period remained a guidepost, not a tram track, to be considered alongside the maximum penalty as part of the instinctive synthesis process.

The Form 1 matter: The second act of sexual intercourse without consent (cunnilingus) was dealt with by way of Form 1. The court acknowledged that this procedure entitled greater weight to be given to personal deterrence and the community's entitlement to retribution than might otherwise apply to the principal offence alone.

The subjective case: The court accepted a substantial body of mitigating material. The offender had no criminal record, entered an early guilty plea (attracting a 25% discount), demonstrated genuine remorse and contrition, was assessed as unlikely to reoffend, and held strong community support. A psychologist's report confirmed no social disadvantage. The court accepted that intoxication, while not an excuse, provided some context for the offending, and that the behaviour was strikingly at odds with the offender's otherwise law-abiding life. The court nonetheless emphasised that a minimal sentence would fail the principle of proportionality given the seriousness of the offending.

Special circumstances: The court found three bases for special circumstances justifying a longer than statutory balance of term. First, this was the offender's first time in custody. Second, a lengthier supervision period was needed to assist with rehabilitation from alcohol dependence. Third, the combination of the offender having recently witnessed a suicide (creating heightened psychological stress) and the early-pandemic concerns about COVID-19 in the prison population meant that the period of imprisonment would be more arduous than usual.

Orders Made

  • The offender was convicted of the offence charged under section 112(2) of the Crimes Act 1900.
  • Sentenced to a non-parole period of 3 years and 9 months, commencing 26 May 2019 and expiring 25 February 2023.
  • Balance of term of 1 year and 9 months, expiring 25 November 2024.

Key Takeaways

  • The District Court confirmed that the standard non-parole period under Division 1A of the Crimes (Sentencing Procedure) Act 1999 operates as a guidepost in sentencing for all Division 1A offences, regardless of whether the conviction follows a trial or a guilty plea. The court declined to follow the narrower approach associated with R v Way [2004] NSWCCA 131, preferring the broader reading indicated by Muldrock.

  • Where an offender is sentenced on a Form 1 matter involving a serious indictable offence, a court may give greater weight to personal deterrence and community retribution than it would for the principal offence considered in isolation.

  • A strong subjective case, including an early guilty plea, genuine remorse, good character, and low reoffending risk, can justify a significant departure from the standard non-parole period, but the principle of proportionality to the seriousness of the offending remains a constraint.

  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 may be established on multiple grounds simultaneously. In this case, first-time custody, rehabilitative needs related to alcohol use, psychological stress from a witnessed trauma, and COVID-19-related prison conditions each contributed independently to the finding.

  • Offending that falls in the mid-range of objective seriousness for break-and-enter with sexual assault can attract a non-parole period substantially below the five-year standard where the combination of subjective factors and special circumstances warrants it, provided the sentencing judge sets out full reasons in accordance with Division 1A obligations.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 105A, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 54B, Division 1A

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (Spigelman CJ)
- Muldrock v The Queen [2011] HCA 39
- R v Way [2004] NSWCCA 131
- Tepania v R [2018] NSWCCA 247
- Lewis v R [2011] NSWCA 206
- BB v R [2017] NSWCCA 189