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District Court 31 May 2021

R v Hovell (a pseudonym)

[2021] NSWDC 326

Sexual offences
CRIM INAL LAW SENTENCE HISTORICAL SEX OFFENCES S25AA DELAY SPECIAL CIRCUMSTANCES

Citation: R v Hovell (a pseudonym) [2021] NSWDC 326
Court: District Court of New South Wales
Date: 31 May 2021
Judge: Grant DCJ

Background

The offender was a mathematics teacher and year advisor at a regional NSW high school. Beginning in 1993, when the victim (referred to as "Sophie," a pseudonym) was 13 years old, he engaged in a sexual relationship with her that continued until just before her 16th birthday in 1996. The relationship ceased when he took up a teaching position in another town and Sophie moved to boarding school.

Sophie's mother died in June 2015, prompting Sophie to disclose the relationship to family members. The matter was reported to the Department of Education, where the offender was still employed as a teacher at the time. Police became involved and lawfully recorded telephone conversations in which the offender acknowledged the relationship and apologised to Sophie.

The offender was arrested in May 2020 and made full admissions to police, expressing remorse and acknowledging that his position as a teacher meant he should have known better. He pleaded guilty at the earliest opportunity to seven offences of sexual intercourse with a child aged between 10 and 16 years, five of which were aggravated by the victim being under his authority, and asked the court to take two further offences into account on a Form 1.

  • Whether and how section 25AA of the Crimes (Sentencing Procedure) Act 1999 applied, requiring the offender to be sentenced according to current sentencing patterns rather than those prevailing at the time of offending in the early-to-mid 1990s
  • What sentencing patterns and practices could be discerned for this type of historical offence, given the limited comparable cases
  • The appropriate quantum of the guilty plea discount
  • How the Form 1 offences affected the sentence for the principal charge to which they were attached
  • Whether special circumstances existed to vary the statutory ratio between the non-parole period and the total sentence

Decision

Section 25AA and historical sentencing

Grant DCJ confirmed that section 25AA required sentencing according to current sentencing patterns and practices, not those that applied at the time of offending. However, the maximum penalties in force at the time of the offending remained relevant as a guide to the range of punishment then available. Both prosecution and defence acknowledged the difficulty in identifying any discernible contemporary sentencing pattern for these specific historical provisions, given that most comparable cases were determined before section 25AA came into force and the applicable maximum penalties have since changed significantly.

Objective seriousness and aggravating factors

The court identified the ongoing nature of the sexual relationship, the victim's age, and the offender's position of authority as a teacher as central features of objective gravity. The victim impact statement, delivered personally by Sophie, described lasting effects on her personal relationships, family life, and life aspirations. The court applied the principle that child sexual offences cause profound and long-lasting harm, and had express regard to the trauma occasioned to Sophie as required by section 25AA(3).

Guilty plea and sparing the victim

The court accepted the parties' agreement that the plea was entered at the earliest opportunity, attracting a 25% discount applied to each indicative sentence. The court also gave separate weight to the practical significance of the plea in sparing Sophie from giving evidence, which the court described as something that would have been severely traumatic and hurtful. The offender's full admissions to police and expressed remorse were treated as mitigating factors.

Form 1 matters

Two additional offences were taken into account on a Form 1, referrable to sequence 3. Consistent with established principles, this operated to increase the sentence for that sequence beyond what would otherwise have been appropriate, and required greater weight to be given to personal deterrence and retribution.

Orders Made

  • An aggregate sentence of six years' imprisonment, commencing 30 May 2021 and expiring 29 May 2027
  • A non-parole period of three years, with eligibility for parole from 29 May 2024
  • Individual indicative sentences were imposed for each sequence (ranging from 16 months to two years and nine months after the guilty plea discount), with two Form 1 offences taken into account on sequence 3

Key Takeaways

  • Section 25AA of the Crimes (Sentencing Procedure) Act 1999 requires a court sentencing for historical sexual offences to apply current sentencing patterns and practices, but the maximum penalties operative at the time of the offending remain a relevant guide to the available range of punishment.
  • Where contemporary sentencing patterns for a particular historical offence type cannot be discerned from available authorities, the court proceeds by reference to the statutory framework and established sentencing principles rather than identifying a numerical range from comparable cases.
  • A guilty plea entered at the earliest opportunity attracted a 25% discount; the District Court also gave separate mitigating weight to the fact that the plea spared the complainant from giving evidence at trial, treating this as a further practical expression of remorse.
  • Form 1 offences attached to a principal charge operate to increase the sentence for that charge and require enhanced weight to be given to personal deterrence and retribution, consistent with the principles in Attorney General's Application (No 1 of 2002).
  • Courts take account of victim impact evidence in assessing the harm caused by child sexual offences, and section 25AA(3) expressly directs a sentencing court to have regard to the trauma of sexual abuse on the child when fixing sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA, 32, 37, 44

Cases
- AJB v R (2007) 169 A Crim R 32
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Carr v R [2020] NSW 214
- Dawkins v R [2018] NSWCCA 278
- FB v R; R v FB [2011] NSWCCA 207
- Hornhardt v R [2017] NSWCCA 186
- Magnuson v R [2013] NSWCCA 50
- Mill v The Queen (1988) 166 CLR 59
- Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497
- MPB v R [2013] NSWCCA 123
- Muldrock v The Queen (2011) 244 CLR 120
- NLR v R [2011] NSWCCA 246
- O'Brien v R [2013] NSWCCA 197
- Postiglione v The Queen (1997) 189 CLR 295
- R v Cattell [2019] NSWCCA 297
- R v CMB [2014] NSWCCA 5
- R v DP [2019] NSWCCA 55
- R v Mak (2006) 167 A Crim R 159
- R v Mostyn [2004] NSWCCA 967