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District Court 10 June 2021

R v Lawson

[2021] NSWDC 245

Sexual offences

Citation: R v Lawson [2021] NSWDC 245
Court: District Court of New South Wales
Date: 10 June 2021
Judge(s): Mahony SC DCJ

Background

The offender, born in July 1966, pleaded guilty to two counts of sexual intercourse without consent under section 61D(1) of the Crimes Act 1900, each carrying a maximum penalty of 8 years imprisonment with no Standard Non-Parole Period. Both victims were his sisters. The offending occurred decades before the matter reached court: Count 1 between 1981 and 1983, when the offender was aged 15 to 17, and Count 2 between 1986 and 1988, when he was aged 19 to 21. A Form 1 offence of indecent assault on a child aged 7 to 10, occurring between 1983 and 1985, was also taken into account on sentencing for Count 2.

The offender had grown up in a severely dysfunctional family. He was one of nine children, subjected to sustained physical and sexual abuse by an older brother from the age of five, exposed to alcohol and drugs from childhood, and deprived of adequate parental guidance. A neuropsychologist diagnosed him with complex PTSD and a range of associated psycho-social disorders stemming from this childhood trauma.

The offender was arrested in February 2019 and spent 188 days in pre-sentence custody before being granted bail. By the time of sentencing in June 2021, between 33 and 40 years had elapsed since the offending. During that intervening period, the offender had become abstinent from alcohol, contributed to his local community, and developed age-related medical conditions.

Legal Issues

  • How should the court approach sentencing for offences committed when the offender was a minor or young adult, given that current sentencing practices apply under section 25AA of the Crimes (Sentencing Procedure) Act 1999?
  • What weight should be given to the offender's extreme childhood deprivation and diagnosed complex PTSD in assessing moral culpability and the purposes of sentencing?
  • How does the very substantial delay in prosecution, spanning almost 40 years, affect the appropriate sentence?
  • Whether the s 5 threshold for imprisonment was crossed for each count, and what non-custodial options were available.
  • Whether special circumstances existed warranting a reduction in the non-parole period relative to the total term.

Decision

Objective Seriousness

The court found the objective seriousness of Count 1 to be high, placing it within the mid-range for a section 61D(1) offence and towards the upper part of that range. The offender had removed the sleeping victim's clothing and had unprotected penile-vaginal intercourse with her while her son slept beside her (at [92]). Count 2 was also assessed as very serious. An aggravating factor applied because the offence occurred in the victim's home, but the court declined to find that the emotional harm caused to either victim was "substantial" within the meaning of section 21A(2)(g), given the absence of victim impact statements or medical evidence of psychological injury, and noting that both victims had also been subjected to sexual abuse by other siblings (at [93]-[94]).

Moral Culpability, Childhood Deprivation, and Mental Impairment

The court accepted the neuropsychologist's opinion that the offender's childhood exposure to sustained trauma was a significant causal factor in his offending behaviour, reducing his moral culpability considerably (at [96]). The court accepted that he suffered from complex PTSD constituting a mental impairment, which reduced the role of general deterrence, retribution, denunciation, and punishment in the sentencing exercise, and meant that any custodial sentence would weigh more heavily on him (at [102]-[103]). The court treated untested self-reported history with appropriate caution but accepted it because the Crown conceded some independent support in the brief, and because the extensive charges against the offender's brother Wayne provided corroboration of the dysfunctional family environment (at [102]).

Delay in Sentencing

The court found that the delay of almost 35 to 40 years warranted a degree of leniency on grounds of fairness, drawing on R v Todd and Mill v R. The court noted this was not a case where the offender had concealed his conduct and lived free from opprobrium: his sisters had known of the offending, and he had acknowledged his involvement to one victim as early as 1999 (at [100]). The offender's rehabilitation advances during the intervening decades, including sobriety and community contributions, were also relevant to the sentencing calculus.

Sentence on Each Count

For Count 1, the court was not satisfied that no penalty other than imprisonment was appropriate. Had the offender been sentenced promptly as a child, rehabilitation would have been the primary consideration. Taking into account his childhood deprivation and subsequent rehabilitation, the court imposed a Community Correction Order of 2 years and 6 months in lieu of imprisonment (at [104]). For Count 2, the court found the section 5 threshold was crossed, particularly given the need to reflect the Form 1 offence involving a child victim aged 7 to 10. The court imposed a sentence of 12 months imprisonment and expressly exercised mercy, citing the offender's childhood deprivation, genuine remorse, mental impairment, ill health, and the near 40-year delay (at [105]-[107]). A finding of special circumstances under section 44(2) was made, and the non-parole period was set at 188 days, matching the time already spent in pre-sentence custody (at [107]).

Orders Made

  • Count 1: Convicted of sexual intercourse without consent under section 61D(1) of the Crimes Act 1900 (offending at North Parramatta between 28 July 1981 and 28 July 1983). Community Correction Order imposed for 2 years and 6 months from the date of sentence, with standard conditions under section 88(1) of the Crimes (Sentencing Procedure) Act 1999.
  • Count 2: Convicted of sexual intercourse without consent under section 61D(1) of the Crimes Act 1900 (offending at Telopea between 1 January 1986 and 9 February 1988). Sentence of imprisonment with a non-parole period of 188 days commencing 5 December 2020 and expiring 10 June 2021; balance of term 178 days expiring 4 December 2021.
  • The Form 1 offence of indecent assault was certified as taken into account on sentence for Count 2.

Key Takeaways

  • Where an offender committed sexual offences as a minor or young adult but is sentenced as an adult decades later, the sentencing court must apply current sentencing practices under section 25AA of the Crimes (Sentencing Procedure) Act 1999 for child sexual offences, while still giving significant weight to the offender's age and developmental circumstances at the time of the offending for offences against adult victims (at [89]-[91]).

  • Accepted diagnoses of complex PTSD arising from severe childhood trauma can constitute a mental impairment that reduces an offender's moral culpability, diminishes the role of general and specific deterrence in the sentencing exercise, and increases the weight of the fact that a custodial term will bear more heavily on that offender (at [102]-[103]).

  • A very long delay between offending and sentencing, particularly where the offender did not conceal the conduct from victims and where substantial rehabilitation has occurred in the intervening period, can warrant a meaningful degree of leniency on fairness grounds, following R v Todd and Mill v R (at [100]).

  • The absence of victim impact statements and medical evidence of psychological harm meant the court declined to apply the "substantial emotional harm" aggravating factor under section 21A(2)(g), illustrating that aggravating circumstances must be established on the evidence before the sentencing court (at [94]).

  • Even where the objective seriousness of historical sexual offending is assessed as mid-range or above, a non-custodial order may remain available for a count where the offender was a minor at the time, provided the court is not satisfied, having considered all alternatives, that imprisonment is the only appropriate penalty (at [104]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Fisher v R; R v Fisher [2021] NSWCCA 91
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- Mill v R (1988) 166 CLR 59
- R v Daley [2010] NSWCCA 223
- R v Eckersley [2021] NSWSC 562
- R v Grube [2005] NSWCCA 140
- R v Todd (1982) 2 NSWLR 517
- R v Windle [2012] NSWCCA 222
- Tammer‑Spence v R [2013] NSWCCA 297