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District Court 2 July 2021

R v Fleming

[2021] NSWDC 453

Sexual offences
CRIME RELEVANT FACTORS ON SENTENCE LATE GUILTY PLEA CHILD VICTIM ON ‘GRINDR’ APP OFFENDER ASSUMES PROTECTIVE ROLE OFFENDER ALSO SEXUAL EXPLOITS VICTIM

Citation: R v Fleming [2021] NSWDC 453
Court: District Court of New South Wales
Date: 2 July 2021
Judge: Haesler SC DCJ

Background

The offender, born in 1999, was sentenced for six offences of sexual intercourse with a child committed between July and October 2019. The complainant (referred to by the pseudonym Scott) was born in October 2004 and was 14 years old at the time of the offences. The two had first made contact through the Grindr app, a platform intended for adult users, when Scott was 13.

Five of the six counts were charged as aggravated sexual intercourse with a child aged between 14 and 16 under s 66C(4) of the Crimes Act 1900 (NSW), with the aggravating circumstance being that the offender took advantage of the complainant while the complainant was under the influence of drugs or alcohol. The sixth count was charged under s 66C(3) of the same Act. Two further matters involving acts of indecency were placed on a Form 1 to be taken into account on sentence for Count 1.

The offences involved multiple meetings during which methylamphetamine and alcohol were provided to or consumed in the presence of the complainant. The offender was arrested in January 2020 and pleaded guilty prior to trial, avoiding the need for a jury to be empanelled.

  • What was the appropriate objective seriousness of the offences, having regard to the standard non-parole periods and the aggravating circumstances?
  • What discount, if any, should apply for the guilty plea, given that it was entered late but accompanied by some facilitation of the course of justice?
  • How should the court treat the Form 1 matters (acts of indecency) without double-counting them against the sentencing for Count 1?
  • What subjective factors, including the offender's immaturity, ill health, assault in gaol, COVID-19 conditions, and compliance with bail conditions, were relevant to the sentence?
  • Whether special circumstances existed justifying a departure from the standard ratio of non-parole period to total sentence under the Crimes (Administration of Sentences) Act 1999.

Decision

Haesler SC DCJ treated the offences as serious. The court emphasised that Parliament's articulation of both the maximum penalties and the standard non-parole periods for offences under s 66C(4) reflects the gravity with which society regards sexual offending against children. The exposure of a 14-year-old child to methylamphetamine and alcohol before sexual acts, as a deliberate element of each offence, was treated as a significant aggravating feature embedded in the statutory elements themselves.

The court accepted that the offender had played something of a protective role toward Scott following the initial contact on Grindr, noting the offender's own difficult experience in understanding his sexual identity and his expressed concern that someone so young had accessed the app. However, the court was clear that this protective narrative did not diminish the exploitative character of the offending. Each offence involved using a child for sexual purposes, and the claimed concern for Scott's welfare was contradicted by the offender's own conduct from the very first meeting.

On the guilty plea, the court could apply only a 10% reduction under s 25D of the Crimes (Sentencing Procedure) Act 1999 because the plea was entered after the matter had been listed for trial. The court noted, however, that the offender's earlier admission to the complainant's mother during a covert call, and his continued cooperation with police and his solicitors, constituted some facilitation of the course of justice, which was factored into the overall sentencing exercise.

A special circumstances finding was made, reducing the proportion of the sentence to be served in custody to 55% rather than the standard two-thirds. This reflected the offender's age, his prospects of rehabilitation with appropriate supervision, and the range of subjective factors including ill health, an assault suffered in custody, and the particularly difficult conditions of imprisonment during the COVID-19 pandemic.

Orders Made

The offender was convicted on all counts. Individual indicative sentences were set before a 10% reduction for the guilty plea, with the following final sentences indicated:

  • Count 1 (s 66C(4), with Form 1 matters): 4 years imprisonment, non-parole period of 2 years 3 months
  • Count 2 (s 66C(4)): 3 years 7 months, non-parole period of 1 year 11 months
  • Count 3 (s 66C(4)): 3 years 7 months, non-parole period of 1 year 11 months
  • Count 4 (s 66C(3)): 2 years 3 months (no standard non-parole period applies)
  • Count 5 (s 66C(4)): 3 years 7 months, non-parole period of 1 year 11 months
  • Count 6 (s 66C(4)): 3 years 7 months, non-parole period of 1 year 11 months
  • Aggregate sentence: 5 years and 3 months, with a special circumstances finding that 55% be served in custody
  • Non-parole period: 2 years and 10 months, commencing 28 January 2021; eligible for parole consideration from 27 November 2023
  • Parole period: 2 years and 5 months, expiring 27 April 2026
  • The Registrar of Wollongong District Court was directed to forward copies of the reports of Dr Yee and Dr Lee with the warrant

Key Takeaways

  • Sentences for offences under s 66C(4) of the Crimes Act 1900 (NSW) carry a maximum of 12 years and a standard non-parole period of 5 years; the District Court here departed downward from the standard non-parole period, citing the guilty plea and the absence of additional aggravating features beyond those embedded in the statutory elements.
  • A mixed protective and exploitative relationship between an offender and a child complainant does not diminish the seriousness of sexual offending; the court treated each count as involving genuine exploitation regardless of the offender's stated concern for the complainant's welfare.
  • Where a plea is entered late under s 25D of the Crimes (Sentencing Procedure) Act 1999, the available discount is capped at 10%, but prior admissions and cooperation with police and legal representatives may still be treated as some facilitation of the course of justice and incorporated into the overall sentencing assessment.
  • Form 1 matters that are preparatory to and factually connected with the primary offence should not be double-counted; where those matters have already informed the assessment of objective seriousness, any additional sentence uplift would be notional only.
  • Special circumstances justifying a reduced custodial proportion can be established by a combination of factors including the offender's youth, rehabilitation prospects, custodial hardship through illness and assault, and the conditions of imprisonment during the COVID-19 pandemic.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61N(1), 66C(3), 66C(4)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 37

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115
- Bell v R [2019] NSWCCA 251
- Brown v R [2020] VSC 60
- Dawkins v R [2018] NSWCCA 278
- Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150
- Nelson v R [2016] NSWCCA 130
- R v O'Connor [2014] NSWCCA 53; (2014) 239 A Crim R 487
- Silvano v R [2008] NSWCCA 118
- The Queen v De Simoni (1981) 147 CLR 383
- Wakeling v R [2016] NSWCCA 33