Citation: R v Steel [2020] NSWDC 950
Court: District Court of New South Wales
Date: 29 January 2020
Judge: Tupman DCJ
Background
The offender appeared before the District Court for sentencing on seven substantive offences, with two further offences taken into account on a Form 1. All offences were historical in nature, having occurred either in 1992 or 1998, and involved two separate male victims, both minors at the time.
The first group of four offences concerned a victim aged 14, whom the offender had met through the Scout movement, where he held a position of trust as troop leader. On a weekend camp in April 1992, the offender provided alcohol to the boys, and then sexually assaulted the victim, including performing anal rape, after which he made verbal threats to prevent the victim from reporting the offending.
The second group of three offences concerned a different victim aged 17, who encountered the offender through a mutual friend connected to Scouts. Between June and November 1998, the offender committed sexual offences against this victim, including non-consensual sexual intercourse. The offender entered guilty pleas on all counts after the trial had already commenced, which affected the discount applied to the sentences.
Legal Issues
- What sentences were appropriate for seven historical child sexual offences involving two victims, across two separate indictments?
- What weight should be given to late guilty pleas entered after the commencement of trial?
- How should the court balance the offender's demonstrated rehabilitation and low risk of reoffending against the objective seriousness of the offending?
- How should the aggregate sentencing regime under section 53A of the Crimes (Sentencing Procedure) Act 1999 apply, including the degree of concurrency between sentences for each victim?
- What discount was appropriate for the offender's guilty pleas, given the timing of those pleas?
Decision
Tupman DCJ treated the offences as serious, noting the multiple aggravating features: the offender's position of trust as a Scout leader, the use of alcohol and drugs to lower inhibitions, the young age of the victims, the use of threats to silence the first victim, and the commission of anal rape. Her Honour assessed the offences involving the first victim as the more serious group.
On the question of rehabilitation, the court accepted that the offender had achieved complete rehabilitation. There had been no further criminal offending since 2001 and no further drug use since that time. The offender had also addressed a substance abuse disorder. Her Honour found that the risk of reoffending was low, which carried some weight in mitigation, though it did not displace the significant objective gravity of the offending.
Because the guilty pleas were entered only after the trial had commenced, her Honour applied a 15% discount rather than the maximum discount available for early pleas. This reduced but did not eliminate the utilitarian benefit of the pleas. A Victim Impact Statement tendered for one victim was taken into account.
Her Honour applied the aggregate sentencing regime separately to each indictment before considering the overall term. The sentences for offences involving the first victim and those involving the second victim were structured to overlap to some extent, reflecting the principle that the total sentence should represent the overall criminality without resulting in a crushing outcome. The final aggregate sentence was six years, with a non-parole period of four years.
Orders Made
Offences involving the second victim (indictment dated 14 August 2019):
- Aggregate sentence of 3 years, with an aggregate non-parole period of 2 years
- Commencing 14 August 2019, expiring 13 August 2022; non-parole period expiring 13 August 2021
- Indicative sentences: Count 1 (inciting gross indecency): 9 months; Count 2 (homosexual intercourse): 18 months; Count 3 (sexual intercourse without consent): 2 years
- Two Form 1 offences taken into account on Count 1
Offences involving the first victim (indictment dated 2 August 2019):
- Aggregate sentence of 5 years, commencing 14 August 2020, expiring 13 August 2025
- Aggregate non-parole period of 3 years, commencing 14 August 2020, expiring 13 August 2023
- Indicative sentences: Count 1 (aggravated indecent assault): 12 months; Count 2 (homosexual intercourse): 3 years; Count 3 (homosexual intercourse, anal rape): 4 years; Count 4 (aggravated indecent assault): 12 months
Overall: Total effective sentence of 6 years with an overall non-parole period of 4 years, backdated to 14 August 2019.
Key Takeaways
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The District Court applied a 15% guilty plea discount where pleas were entered after the commencement of trial, reflecting the reduced utilitarian value compared to early pleas under the Crimes (Sentencing Procedure) Act 1999.
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A position of trust, such as that of a Scout leader over young members, constitutes a significant aggravating feature in the sentencing of child sexual offences and weighs heavily against the offender.
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Demonstrated rehabilitation, including cessation of offending and drug use for nearly two decades before sentencing, can constitute genuine mitigation, though it does not displace the objective seriousness of the underlying conduct.
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Under the aggregate sentencing regime in section 53A of the Crimes (Sentencing Procedure) Act 1999, sentences for offences against separate victims may be structured to overlap, so that the overall term reflects total criminality rather than producing an excessive result through full accumulation.
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Where offending spans multiple occasions and victims over several years, sentencing courts must calibrate both individual indicative terms and the aggregate period to ensure the totality principle is honoured.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 61I, 61M(1), 78K, 78Q(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 5, 25AA, 53A
Cases:
- R v Cattell [2019] NSWCCA 297