Citation: R v Shackfield (a pseudonym) [2020] NSWDC 939
Court: District Court of New South Wales
Date: 13 March 2020
Judge: P Taylor SC DCJ
Background
The offender, referred to by the pseudonym Roger Shackfield, pleaded guilty to committing an act of indecency with a child under the age of 16 years, contrary to s 61E(2) of the Crimes Act 1900 as it stood in 1990. The offence was committed when the offender was approximately 19 years old and the victim, his niece, was approximately five years old. The maximum penalty applicable at the time of the offence was two years' imprisonment.
The offence involved the offender inducing his niece to kiss his exposed, erect penis while she was standing beside his bed. The matter came to light in late 2017, some 27 years after the offence occurred, when the offender confessed to a sibling. The victim subsequently provided a police statement, and the offender participated in a recorded interview in June 2018 in which he admitted the conduct and acknowledged he had directed the child to perform the act.
At sentencing, the offender was in his late 40s. He had no prior criminal history, had worked on a farm for over a decade, had ceased alcohol and drug use following the offence, and had engaged in psychological treatment. The prosecution and defence both tendered materials bearing on objective seriousness and subjective circumstances.
Legal Issues
- Whether the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 was met, requiring that no penalty other than imprisonment was appropriate
- How to assess the objective seriousness of the offence, including the applicable aggravating factors
- What weight to give to the offender's substantial mitigating circumstances, including good character, remorse, rehabilitation, lack of prior convictions, and plea of guilty
- Whether special circumstances existed justifying a longer-than-usual ratio of parole to non-parole period
- The appropriate discount for the utilitarian value of the guilty plea, entered at callover stage
Decision
Judge Taylor found that the offence fell in the mid-range of objective seriousness. Two statutory aggravating factors were present: the offender abused a position of trust as the child's uncle (s 21A(2)(k)), and the victim was a particularly vulnerable five-year-old child (s 21A(2)(l)). The court also noted the age disparity between the parties, the physical contact involved, the fact that the act was committed solely for the offender's sexual gratification, and that children within families have a recognised right to protection from sexual abuse.
Against those findings, the court identified substantial subjective mitigating factors. The offender had no prior criminal record, was of otherwise good character, had demonstrated genuine remorse, had effectively rehabilitated himself over nearly three decades by ceasing drug and alcohol use, had engaged in psychological treatment, and was assessed as a low risk of reoffending. The court received supporting evidence from a psychologist and from the offender's sister, a long-term work colleague.
On the question of the sentencing threshold, the court held that the nature of the sexual offence against a young child meant that no penalty other than imprisonment was appropriate, notwithstanding the significant mitigating material. A guilty plea discount of 10% was applied, reflecting that the plea was entered at callover rather than at an early stage.
The court found special circumstances under s 67 of the Crimes (Sentencing Procedure) Act 1999, noting this was the offender's first custodial sentence and that his psychological condition could make imprisonment more burdensome. This justified a longer period of supervised parole relative to the non-parole period.
Orders Made
- The offender was convicted of committing an act of indecency with a child under the age of 16 years.
- A term of imprisonment of nine months was imposed, with a non-parole period of six months.
- The term of imprisonment commenced on 13 March 2020 and was set to end on 12 December 2020.
- The non-parole period was set to conclude on 12 September 2020.
Key Takeaways
- The District Court confirmed that even where an offender presents with substantial subjective mitigation (no prior record, genuine remorse, rehabilitation, and low reoffending risk), a sexual offence against a young child will ordinarily require a sentence of imprisonment.
- A guilty plea entered at callover, rather than at an early opportunity, attracted only a 10% utilitarian discount rather than a more generous allowance.
- Abuse of a familial position of trust and the extreme youth and vulnerability of the victim are statutory aggravating factors that materially elevate the seriousness of an act of indecency offence, even where the underlying conduct is at a level short of the most extreme examples.
- Special circumstances justifying an extended parole period can arise from a combination of it being the offender's first custodial sentence and evidence of psychological vulnerability that may make imprisonment more burdensome than usual.
- The court applied the principle that the entire class of children under 10 years of age is regarded as vulnerable, and that the younger the victim, the greater the criminality involved.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61E
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 9, 21A, 25D, 67
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)
Cases
- AJB v R (2007) 169 A Crim R 32
- Bonwick v R [2010] NSWCCA 177
- Cameron v The Queen (2002) 209 CLR 339
- Clarkson v R; EJA v R [2011] VSCA 157; (2011) 32 VR 361
- Hili v The Queen (2010) 242 CLR 520
- Kutchera v R [2007] NSWCCA 121
- Mill v The Queen (1988) 166 CLR 59
- MLP v R [2006] NSWCCA 271
- PWB v R [2011] NSWCCA 84
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v Donald [2013] NSWCCA 238
- R v H (1980) 3 A Crim R 53
- R v KNL (2005) 154 A Crim R 268
- R v MJR (2002) 54 NSWLR 368
- R v Oliver (1980) 7 A Crim R 174
- R v PGM (2008) 187 A Crim R 152
- Veen (No 2) (1988) 164 CLR 465