Citation: R v Hasna [2020] NSWDC 947
Court: District Court of New South Wales
Date: 7 July 2020
Judge: Tupman DCJ
Background
The offender, a man of almost 50 years of age, pleaded guilty on indictment to two counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW). Both offences were committed against a 12-year-old boy on 22 April 2017 in public toilets at a shopping plaza in Bass Hill. A third offence of the same character, involving the same victim at the same time, was placed on a Form 1 to be taken into account when sentencing on Count 1.
The agreed facts established that the offender had entered and exited the public toilets twice before observing the victim walking toward them. He then turned around and followed the victim inside approximately one minute later. The court found, based on phone records and CCTV evidence, that the offender was pretending to speak on his phone to deflect suspicion and that he was, in the vernacular used in the judgment, "cruising" for a sexual encounter when he entered the toilets and encountered the victim.
The pleas of guilty were entered on 2 October 2019, only after a trial had been listed, vacated twice, and was on the verge of proceeding. The complainant had already given pre-recorded evidence under the Child Sexual Offence Evidence Pilot in May 2018.
Legal Issues
- What discount, if any, should be applied to reflect the utilitarian value of the late guilty pleas?
- How should each count be assessed for objective seriousness against the applicable range?
- What weight should be given to the offender's personal circumstances, including age, health, background, lack of prior convictions, and prospects of rehabilitation?
- Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the total term of imprisonment
- Whether the sentences should be served concurrently or cumulatively, and from what date they should commence
Decision
Her Honour found that Count 1 fell below the midrange of objective seriousness and Count 2 sat at the middle of the range. The victim was not physically injured but suffered emotional harm, which was addressed through a Victim Impact Statement. The offender's culpability was aggravated by the fact that he deliberately targeted and followed the child into the toilet, having identified him as a potential victim.
The pleas of guilty were characterised as late. The court noted that an earlier offer to plead guilty in the Local Court had been to a substantially less serious offence and was not a realistic guilty plea for the purpose of securing a greater discount. A 10% discount for utilitarian value was applied, consistent with a joint submission from both parties, with the court observing that the maximum available under the Early Appropriate Guilty Plea Scheme would have been only 5%.
In the offender's favour, the court accepted that he had no prior criminal history, came from a traditional family background, had operated businesses in the food and hospitality sector, suffered from depression, and had very good prospects of rehabilitation. Treatment for his mental health had commenced and the court expressed a view, reluctantly, that continued community-based treatment would better serve the public interest in reducing reoffending. However, the court concluded that the purposes of denunciation, punishment, and general deterrence required a term of imprisonment.
Special circumstances were found to exist on three grounds: this was effectively the offender's first term of imprisonment; his non-parole period would be served in two separate portions; and the conditions of custody during the COVID-19 pandemic, including restricted access to programs and visits and an initial quarantine period, made his imprisonment more onerous than it would otherwise be. His ongoing mental health treatment would also be interrupted. The court backdated the sentence to 7 November 2018 to reflect time already served.
Orders Made
- The offender was convicted on both counts.
- For each offence: a non-parole period of 2 years and 3 months, commencing 7 November 2018 and expiring 6 February 2021, followed by a parole period of 2 years commencing 7 February 2021 and expiring 6 February 2023, giving an overall term of imprisonment of 4 years and 3 months.
- The sentences on each count run concurrently.
- The Form 1 offence was taken into account when sentencing on Count 1.
Key Takeaways
- The District Court confirmed that a guilty plea entered on the eve of trial, after earlier negotiations produced only an offer to plead to a significantly less serious offence, attracts only a limited utilitarian discount, assessed here at 10%.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) can be established by a combination of factors, including that a sentence will be served in distinct portions, that custody conditions are more onerous due to a public health emergency, and that treatment will be interrupted during imprisonment.
- Where objective seriousness falls at or below the midrange for child sexual offences, subjective factors including strong rehabilitation prospects, absence of prior convictions, and existing mental health conditions remain relevant to the structure of the sentence, even if they do not displace the need for full-time custody.
- A court sentencing for multiple offences arising from the same incident may backdate a sentence to reflect prior custody, and in this case the backdating required the offender to serve an additional seven months before becoming eligible for parole.
- The judgment reflects the court's view that community-based treatment can better serve public protection in some cases, while nonetheless holding that denunciation, punishment, and general deterrence required a custodial term for serious child sex offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61M(2) (aggravated indecent assault; maximum penalty 10 years imprisonment; standard non-parole period 8 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A (purposes of sentencing), 5 (imprisonment as a last resort), 25AA (standard non-parole periods)
Cases cited: No cases were cited in the portions of the judgment provided.