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District Court 1 April 2021

R v WS

[2021] NSWDC 135

Sexual offences
NO FINDING TO BE ATTRIBUTED TO THE JURY

Citation: R v WS [2021] NSWDC 135
Court: District Court of New South Wales
Date: 1 April 2021
Judge(s): R. J. Weber SC DCJ

Background

The offender, a man born in January 1972, was convicted by jury of two historical sexual offences committed against his biological sister at the family home in Sadleir, NSW. The offences occurred in 1990, when the offender was 18 years old. The victim returned home from school during Year 10 examinations when the offending took place.

The two counts on which the jury returned guilty verdicts were indecent assault (count 2) and sexual intercourse without consent (count 4). Both offences were charged as occurring between 1 September and 10 November 1990. The offender was acquitted of two other counts on the same indictment.

The parties broadly agreed on the core facts. After the assault, the victim went to find her parents at a local hotel and then attended the family's general practitioner, who arranged pregnancy and sexually transmissible disease testing. Medicare records confirmed a pregnancy test on 16 November 1990.

  • Whether the victim was aged 15 or 16 at the time of the offences, and what maximum penalty applied to count 4 under the since-repealed s 61D(1) of the Crimes Act 1900 (10 years if the victim was under 16; 8 years if she was 16 or older)
  • Whether the date range in the indictment was a matter for the jury to determine, or whether the sentencing judge could make an independent finding of fact about when the offences occurred
  • Whether uncharged sexual acts relied upon as context evidence were established to the requisite standard for use in sentencing
  • Whether the offender's use of a knife after count 4 was proven beyond reasonable doubt and properly attributable to the jury's verdict
  • What sentence was appropriate having regard to the objective seriousness of the offences, aggravating and mitigating factors, and the offender's subjective circumstances

Decision

Age of the victim and applicable maximum penalty

The sentencing judge accepted the Crown's submission that the date range in the indictment constituted particulars, not elements of the offences. Following The Queen v Meaton (1986) 160 CLR 359 and Keung v The Queen [2008] NSWCCA 193, his Honour held that because the dates were particulars rather than elements, no finding on timing could be attributed to the jury. The sentencing judge was therefore required to make an independent factual finding.

Medicare records showed the victim visited Dr Bright on 6, 7, and 10 September 1990, all of which were school days confirmed by a 1990 calendar in evidence. The victim's account that she attended the doctor on the same day as the assault, and that she had been sitting an examination that morning, was consistent with those dates. The sentencing judge found beyond reasonable doubt that the offences occurred on one of those three dates, all of which preceded the victim's sixteenth birthday in October 1990. The applicable maximum penalty for count 4 was therefore 10 years' imprisonment.

Uncharged sexual acts and knife use

The sentencing judge declined to rely on uncharged sexual acts as context evidence because they were not established beyond reasonable doubt. However, his Honour found that the use of a knife formed part of the res gestae of count 4, meaning it was so integrally connected to the events surrounding that offence that it was properly attributable to the jury's guilty verdict beyond reasonable doubt. The knife use was treated as an aggravating factor.

Sentencing considerations

The offending was serious: it involved an assault by a family member on a vulnerable victim in her own home, exploiting a position of trust. Aggravating factors included the use of a weapon and the relationship between the offender and victim. Mitigating factors included the offender's absence of prior convictions, prior good character, the offending not being part of planned or organised criminal activity, and a low likelihood of reoffending. Special circumstances were found to exist, warranting a longer than usual parole period to allow supervision and counselling for alcohol use, anger management, and relationship issues. An aggregate sentence was imposed to best accommodate proportionality, accumulation, concurrence, and totality.

Orders Made

  • Count 2 (indecent assault): indicative sentence of 12 months' imprisonment
  • Count 4 (sexual intercourse without consent): indicative sentence of 4 years' imprisonment
  • Aggregate sentence of 4 years and 3 months' imprisonment
  • Non-parole period of 2 years and 6 months, commencing 1 April 2021 and expiring 30 September 2023
  • Balance of sentence to expire 30 June 2025

Key Takeaways

  • Date ranges in an indictment are particulars, not elements of the offence. The District Court confirmed that no factual finding as to timing can be attributed to the jury on that basis alone, and the sentencing judge must independently determine the timing of offending where it affects the applicable maximum penalty.
  • Under the since-repealed s 61D(1) of the Crimes Act 1900, the age of the victim at the time of the offence determined the maximum penalty available, making the timing finding consequential to the sentence imposed.
  • Where an uncharged act is so closely connected to the charged conduct as to form part of the res gestae, that act may properly be taken into account at sentence as part of the jury's implicit findings, even without a separate finding against the offender.
  • Uncharged sexual acts relied upon as context evidence must still be established beyond reasonable doubt before a sentencing court can treat them adversely against an offender.
  • Special circumstances permitting a departure from the statutory ratio between non-parole period and head sentence may be established where an offender has a genuine need for extended supervision and rehabilitative support during the parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 53A

Cases
- Dimian v R [2016] NSWCCA 223
- Gregg v The Queen [2020] NSWCCA 245
- Keung v The Queen [2008] NSWCCA 193
- Markarian v The Queen (2005) 228 CLR 357
- R v Isaacs (1997) 41 NSWLR 374
- R v King (2004) 150 A Crim R 409
- R v Lilley (2004) 150 A Crim R 591
- R v Olbrich (1999) 199 CLR 270
- R v Wickham [2004] NSWCCA 193
- Saffron v The Queen (1988) 17 NSWLR 395
- Savvas v The Queen (1995) 183 CLR 1
- The Queen v Meaton (1986) 160 CLR 359