Citation: R v Muggleton [2021] NSWDC 285
Court: District Court of New South Wales
Date: 2 July 2021
Judge: Lerve DCJ
Background
The offender, a man now aged 70 and a paraplegic since 1968, appeared for sentence on seven charges arising from sexual offending against a 14-year-old girl between June 1992 and January 1993. The offending occurred within a context of serious breach of trust: the offender, then in his early forties, had developed a close friendship with the victim's family after meeting them at a club performance, and the victim had known him since she was approximately 10 or 11 years old.
The charges comprised five counts of sexual intercourse with a child aged between 10 and 16 years (under s 66C(1) of the Crimes Act 1900 as it then was) and two counts of aggravated indecent assault (under s 61M(1)). The offending spanned three separate episodes: one in Ballina during the September 1992 school holidays, and two separate incidents in Tamworth in January 1993 during the Tamworth Country Music Festival.
The offender pleaded guilty and was committed for sentence from Wagga Wagga Local Court to the District Court. He was entitled to a 25% utilitarian discount for his pleas, and an additional discount for past assistance to authorities, bringing the combined reduction to 40%.
Legal Issues
- What was the objective seriousness of each of the seven offences, given the nature of the conduct, the victim's age, and the age disparity?
- What weight should be given to the offender's previous good character?
- How should the offender's significant physical disability (paraplegia) affect the sentence, particularly with respect to general deterrence and the conditions of imprisonment?
- What discount applied for the guilty pleas and past assistance to authorities?
- Whether special circumstances existed to justify a non-parole period substantially below the statutory proportion?
Decision
Lerve DCJ assessed the objective seriousness of each offence individually, declining to rank the types of sexual conduct in a hierarchy. Relying on principles from R v AJP, Jolly v R, and R v BA, his Honour confirmed that each offence must be evaluated on its own facts and circumstances. Sequence 1 (rubbing of torso on vaginal area) was assessed as upper end of mid-range; Sequence 2 (kissing and cuddling in a shower) as marginally below mid-range; Sequence 7 (cunnilingus) as moderately below mid-range. The January 1993 offences, including digital penetration, penile/vaginal intercourse, and more serious digital penetration described as "fisting," were also assessed individually.
The court identified the significant age disparity (the offender being in his early forties and the victim being 14) and the serious breach of trust as aggravating features. The victim was at the upper end of the age range contemplated by the relevant provisions, which was relevant but did not reduce the gravity of the offending.
In terms of mitigating factors, the offender's previous good character carried some weight, as did his physical disability. His Honour considered that imprisonment would be substantially more burdensome for a paraplegic offender, and that general deterrence, while always relevant in child sexual offending, was somewhat reduced in its application given the historical nature of the offences and the offender's age and condition. Special circumstances were found to exist, warranting a non-parole period of approximately 53% of the total term, principally to allow for adequate supervision and support upon release given the offender's disability.
The combined 40% discount for the guilty pleas and past assistance was applied to arrive at the final aggregate sentence. The court noted that without this discount the aggregate sentence would have been 6 years and 6 months.
Orders Made
- The offender was convicted on all seven charges.
- An aggregate sentence of 3 years and 9 months was imposed, with a non-parole period of 2 years.
- The non-parole period commences 2 July 2021 and expires 1 July 2023.
- The balance of term (1 year and 9 months) runs from 2 July 2023 and expires 1 April 2025.
- The court recommended the offender's release to parole at the expiration of the non-parole period.
- Medical documentation (report of Dr Furst, GP Care Plan Review, and Manual Handling Chart) was directed to be annexed to the warrant forwarded to the Department of Corrective Services.
Key Takeaways
- Sexual offences against children should not be assessed by ranking different types of sexual conduct in a hierarchy; each offence must be evaluated according to its own facts and circumstances, consistent with the principles in R v AJP, Jolly v R, and R v BA.
- A significant age disparity between offender and victim, combined with a breach of trust arising from a close family friendship, are established aggravating factors in child sexual offending.
- Where an offender has a severe physical disability such as paraplegia, the sentencing court may find that imprisonment imposes a greater burden on that offender than on a person in ordinary health, which can bear upon the weight given to general deterrence and the structure of the sentence.
- A combined discount of 40% is available where an offender both pleads guilty and provides past assistance to authorities, and the court must separately identify the starting-point sentence to which that discount is applied.
- Special circumstances justifying a non-parole period below the statutory proportion may be found where an offender's medical condition requires structured supervision and support upon release.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 66C(1), 61M(1), 61H
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Chamseddine v R [2017] NSWCCA 176
- Jolly v R [2013] NSWCCA 76
- MC v R [2017] NSWCCA 316
- R v AA [2017] NSWCCA 84
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v BA [2014] NSWCCA 148
- R v Burchell (1987) 34 A Crim R 148
- R v Ellis (1986) 6 NSWLR 603
- R v Tuala [2015] NSWCCA 8
- R v TWP [2006] NSWCCA 141
- R v Van Ryn [2016] NSWCCA 1
- R v Muldoon (unrep, NSWCCA, 13 December 1990)