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District Court 12 February 2021

R v Henry

[2021] NSWDC 152

Sexual offences

Citation: R v Henry [2021] NSWDC 152
Court: District Court of New South Wales
Date: 12 February 2021
Judge: M L Williams SC DCJ

Background

The offender, a Canadian national aged 50 at the time of the offences, was living in Robertson in the Southern Highlands and working at the local hotel. The victim was a 17-year-old girl who had advertised dog-walking services on Facebook. Three to four years before the offences, the offender had created a fake Facebook profile under a woman's name, using a young girl's photo, with the stated purpose of befriending young girls for sexual purposes.

In January and February 2020, the offender used both the fake profile and his personal profile to communicate with the victim. He told her that the fake profile was his real partner, proposed a threesome, and described himself as a "sugar daddy." When they met in person on 19 February 2020, he told her the fictional "partner" had a hangover. He then took her to his home, supplied her with multiple vodka drinks while knowing she was 17, and she became heavily intoxicated and lost consciousness.

While the victim was unconscious, the offender removed her clothing and sexually penetrated her. He also photographed her undressed on the bed without her knowledge or consent. A second set of photos was taken of her in the shower. Forensic DNA testing later connected the offender to the victim. He was arrested in June 2020 and subsequently pleaded guilty at an early stage to both charges.

  • What was the appropriate sentence for sexual intercourse without consent under s 61I of the Crimes Act 1900, taking into account objective seriousness and the standard non-parole period?
  • What was the appropriate sentence for intentionally recording an intimate image without consent under s 91P(1) of the Crimes Act 1900, including a further offence on the Form 1?
  • What discount applied for the early guilty pleas and any additional discount under the Ellis principle for assistance?
  • Whether special circumstances existed justifying a variation from the standard proportion between the non-parole period and the total sentence.
  • Whether partial accumulation of the sentences was warranted given the separate criminality involved.

Decision

His Honour applied a 25% discount to both counts for the utilitarian value of the early guilty pleas. On the first count (sexual intercourse without consent), a further 5% discount was applied under the Ellis principle. The Crown had argued that the offender's statements to police were inconsistent and unhelpful, and that he repeatedly lied. The court acknowledged some merit in the defence's position that the DNA evidence alone may not have been sufficient to prove the Crown case, but found only a modest additional discount was justified, noting the offender continued to assert the intercourse was consensual until very recently.

The offending was found to be serious in objective terms. Key aggravating features included the planned and organised nature of the criminal activity, the offender's prior creation of a fake profile specifically to groom young girls, the deliberate supply of alcohol to a 17-year-old victim, and the sexualised grooming conduct conducted over social media before the offences. The offender's prior record, while not for offences of comparable gravity, demonstrated the current conduct was not entirely out of character.

The court found special circumstances existed, based on the offender's first time in custody and his need for rehabilitation and treatment for longstanding drug addiction. A modest degree of accumulation was imposed to reflect the separate criminality across the two counts. Expressions of remorse reported to psychologists were treated cautiously, as they were belated, prompted, and not readily forthcoming, and had only recently been disavowed as admissions of consensual intercourse.

Orders Made

  • The offender was convicted of each offence.
  • On Count 1 (sexual intercourse without consent): indicative sentence of 2 years and 10 months, after a 30% discount (25% for guilty plea, 5% for assistance).
  • On Count 2 (intentionally recording an intimate image without consent): indicative sentence of 1 year, after a 25% discount for guilty plea.
  • A second s 91P(1) offence was taken into account on a Form 1.
  • An aggregate sentence of 3 years and 2 months was imposed, commencing 19 June 2020.
  • A non-parole period of 22 months was imposed, expiring 18 April 2022.
  • Special circumstances were found.

Key Takeaways

  • The District Court confirmed that sustained pre-offence grooming conducted through a deliberately fabricated social media identity constitutes a significant aggravating feature going to the planned and organised nature of the criminal activity.
  • Under the Ellis principle, a discount beyond the standard utilitarian plea discount may be available where the plea assisted in proving the Crown case, but the court will calibrate the additional allowance modestly where the offender repeatedly lied to police and only recently accepted guilt.
  • A finding of special circumstances, which permits a longer parole period relative to the non-parole period, was available here because it was the offender's first period of custody and he had longstanding addiction issues requiring treatment.
  • Where charges arising from the same incident involve separate and distinct criminality (here, sexual assault and non-consensual recording), partial accumulation of sentences is appropriate to reflect that distinct wrongdoing.
  • Expressions of remorse recorded in pre-sentence psychological reports carry limited weight where they are untested, prompted, and inconsistent with representations the offender made to authorities until shortly before sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 91P(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (guideline judgment on Form 1 offences)
- R v Ellis (1986) 6 NSWLR 603 (discount for assistance to authorities)
- R v Qutami (2001) 127 A Crim R 369 (caution regarding untested subjective histories)
- Imbornone v R [2017] NSWCCA 144 (same principle)
- Buckley v R [2021] NSWCCA 6