Citation: R v MC (No 2) [2021] NSWDC 271
Court: District Court of New South Wales
Date: 8 April 2021
Judge: Bright DCJ
Background
The offender, a man aged 77 at the time of sentencing, was found guilty after a judge-alone trial of two counts of sexual intercourse without consent under s 61D(1) of the Crimes Act 1900 (NSW). The maximum penalty for each offence was 10 years imprisonment, and no standard non-parole period applied.
The offending took place between April 1990 and March 1991. The victim, then aged 14 or 15, was the girlfriend of the offender's 18-year-old son. On a night when she was staying at the offender's home, the offender entered her room, threatened her, and committed two separate acts of sexual assault: digital penetration (Count 2) and penile penetration (Count 4). Both acts were accompanied by physical force, threats of harm, and an attempt to silence the victim by placing a pillow over her face.
The victim did not provide a statement to police until December 2013, some 22 to 23 years after the offending. The offender was arrested in July 2016, charged, and the matter proceeded to trial in February 2021. By the time of sentencing, the offender had also served a prior sentence for separate offending, with the most recent prior offending dating from 1999 to 2000.
Legal Issues
- What was the appropriate assessment of objective seriousness for each count, having regard to the nature of the acts, the use of force and threats, and the victim's age?
- What weight should be given to the lengthy delay between the offending (1990 to 1991) and prosecution in determining the appropriate sentence?
- How should the offender's advanced age, poor physical health, and prospects of rehabilitation affect the sentence?
- What aggregate sentence and non-parole period were appropriate, including whether special circumstances existed to vary the statutory ratio between the non-parole period and the balance of the sentence?
Decision
Bright DCJ characterised the offending as objectively very serious. The victim was between 14 and 15 years old, was staying in the offender's home where she was entitled to feel safe, and the offending involved significant force, threats, and deliberate attempts to silence her. The age disparity between the victim and a 47 to 48 year old offender was also noted as an aggravating feature. The Crown's submission that the conduct fell in the middle of the range of objective seriousness was accepted for both counts.
On the question of delay, the court applied established principles from cases including R v Todd (1982) and Cahyadi v R (2007). The court recognised that the lengthy passage of time since the offending was a relevant mitigating consideration, particularly because the offender had lived without reoffending for over 21 years since his most recent prior offending. The delay affected the weight given to general deterrence, though not to the same extent as cases where the delay was entirely outside the prosecution's control.
The offender's advanced age (77 at sentencing, approaching 78) and poor physical health were treated as significant subjective factors. The court was satisfied that the offender had reasonably good prospects of rehabilitation and was unlikely to reoffend, given his age, health, and the absence of any access to children. These factors informed the court's decision to moderate both the total term and the non-parole period.
The court found special circumstances existed, justifying a departure from the standard statutory ratio between the non-parole period and the balance of the sentence. An aggregate sentence was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentence was backdated by seven days to account for time the offender had spent in custody.
Orders Made
- Count 2 (sexual assault, person under 16): total term of 2 years and 6 months (indicative individual sentence)
- Count 4 (sexual assault, person under 16): total term of 3 years and 6 months (indicative individual sentence)
- Aggregate sentence of 4 years and 6 months, commencing 1 April 2021 and expiring 30 September 2025
- Non-parole period of 2 years and 3 months, commencing 1 April 2021 and expiring 30 June 2023
- First eligible for parole: 30 June 2023
- Special circumstances found; statutory ratio between non-parole period and parole period varied accordingly
Key Takeaways
- Significant delay between historical offending and prosecution is a mitigating factor at sentencing, capable of moderating both the total term and the non-parole period, though its weight depends on the circumstances of the delay.
- Advanced age and serious physical ill-health are recognised subjective mitigating factors, particularly where they bear on the risk of reoffending and the practical experience of imprisonment.
- Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court imposing an aggregate sentence must still indicate the sentence it would have imposed for each individual offence.
- Special circumstances permitting a variation of the statutory ratio between the non-parole period and the balance of the sentence may be established where an offender's health and age make the parole period particularly significant to rehabilitation and reintegration.
- The objective seriousness of a sexual assault is assessed by reference to the totality of circumstances, including the victim's age and vulnerability, the degree of force and threats used, the breach of trust involved, and the nature of the act, without any fixed hierarchy based solely on the type of sexual act committed.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61D(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 53A
Cases
- Cahyadi v R [2007] NSWCCA 1
- Jonson v R [2016] NSWCCA 286
- MC v R [2017] NSWCCA 274
- Porter v R [2019] NSWCCA 117
- R v Blanco (1999) 106 A Crim R 303
- R v Dent (unreported, NSWCCA, 14 March 1991)
- R v Edwards (1996) 90 A Crim R 510
- R v Gavel [2014] NSWCCA 56
- R v Todd (1982) 2 NSWLR 517