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District Court 4 June 2021

R v LW

[2021] NSWDC 233

Sexual offencesDomestic & family violence
CRIME SENTENCING BREACH OF ADVO NO HIERARCHY OF SEXUAL OFFENCES GENUINE REMORSE

Citation: R v LW [2021] NSWDC 233
Court: District Court of New South Wales
Date: 4 June 2021
Judge: Lerve DCJ

Background

The offender, a 36-year-old man, pleaded guilty to two counts of aggravated sexual intercourse without consent against his 17-year-old biological daughter. The offending occurred on the night of 15 to 16 January 2020 at a relative's home in Glenfield Park, near Wagga Wagga, where both the offender and the victim had been socialising with a cousin.

The offender and victim had been drinking alcohol with the cousin through the evening. The victim entered the offender's bedroom to joke about a bet, at which point the offender initiated a sequence of sexual conduct despite the victim repeatedly telling him to stop. The offences involved oral and then penile-vaginal intercourse. A domestic violence order (DVO) was in force at the time, prohibiting the offender from approaching within 12 hours of consuming alcohol.

After the offending, the victim barricaded herself in another room, contacted family members, and was eventually collected by her grandfather. She was taken to hospital, where a sexual assault kit was completed. DNA analysis confirmed the offender's involvement. He was arrested several days later at Coffs Harbour, having travelled there using a cousin's name to book his train ticket.

  • What was the appropriate sentence for two counts of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900, given the circumstances of aggravation, an early guilty plea, and mitigating factors including remorse?
  • Whether any hierarchy of seriousness should be applied to distinguish between different physical acts of sexual intercourse for sentencing purposes.
  • How to treat the statutory aggravating factor of breach of trust where it was already embedded in the elements of the offences.
  • Whether special circumstances existed to justify reducing the non-parole period below the statutory ratio.
  • How to deal with the associated Form 1 sexual touching offence and the DVO breach charged by way of a s 166 Certificate.

Decision

The court accepted that the offending was unplanned and opportunistic, but emphasised that it continued after the victim repeatedly said to stop. The presence of a DVO did not lead to separate punishment for the breach in the aggregate sentence, as the DVO breach was addressed through the s 166 Certificate charge. Lerve DCJ dealt with the DVO contravention under s 10A of the Crimes (Sentencing Procedure) Act 1999, recording a conviction without further penalty, a course neither party opposed.

On the question of whether cunnilingus is less serious than penile-vaginal intercourse, the court applied the Court of Criminal Appeal's reasoning in R v AJP, confirming that no hierarchy exists among the forms of sexual intercourse defined in the legislation. The appropriate assessment depends on the facts and circumstances of each case. Slightly different notional sentences were nonetheless imposed for each act to reflect their distinct characters within the overall episode.

The court found that the statutory aggravating factor of breach of trust (s 21A(2)(k) of the Crimes (Sentencing Procedure) Act) was made out, but declined to apply it as a further uplift. Because the offences were already charged in their aggravated form on the basis of the offender being the victim's father, applying the breach of trust factor separately would constitute impermissible double counting.

An aggregate sentence was imposed under s 53A. The court found special circumstances justifying a non-parole period of approximately 63% of the total term, rather than the standard 75%. The reasons for that finding are set out within the judgment's reasoning, and Lerve DCJ recommended the offender's release to parole at the expiry of the non-parole period. A full 25% discount was applied for the utilitarian value of the early guilty plea.

Orders Made

  • The offender was convicted of both substantive offences.
  • An aggregate sentence of 6 years and 9 months was imposed, with a non-parole period of 4 years and 3 months.
  • The non-parole period commenced on 20 January 2020 and expires on 19 April 2024; the balance of term of 2 years and 6 months runs from 20 April 2024 to 19 October 2026.
  • The court recommended the offender's release to parole at the expiry of the non-parole period.
  • A finding of special circumstances was made, with the non-parole period representing approximately 63% of the total sentence.
  • The DVO contravention (s 166 Certificate) was dealt with under s 10A of the Crimes (Sentencing Procedure) Act, resulting in conviction without further penalty.
  • A copy of Dr Furst's report (exhibit 1 on sentence) was directed to be annexed to the warrant forwarded to the Department of Corrective Services.

Key Takeaways

  • Under s 61J of the Crimes Act 1900, where the aggravating circumstance is already an element of the charge (here, the offender being the victim's biological parent), the court cannot also apply the statutory aggravating factor of breach of trust under s 21A(2)(k) without engaging in double counting.
  • The Court of Criminal Appeal's position in R v AJP was applied: there is no fixed hierarchy of seriousness among different forms of sexual intercourse for sentencing purposes, and each case must be assessed on its particular facts.
  • An early guilty plea attracting the full 25% utilitarian discount remains a significant mitigating factor even in cases of serious sexual offending against a family member.
  • Where a DVO breach arises from the same factual matrix and is charged by certificate under s 166 of the Criminal Procedure Act, a court may deal with it under s 10A without imposing additional penalty, particularly where this approach is not opposed.
  • Special circumstances permitting a departure from the standard non-parole period ratio can be found in serious sexual assault cases, with the effect of extending the period of supervised release on parole.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61H, 61J, 61KB(1)(a)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2)(k), 53A

Cases
- Bugmy v The Queen [2013] HCA 37
- Jolly v R [2013] NSWCCA 76
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v Tuala [2015] NSWCCA 8