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District Court 1 September 2021

R v Sams

[2021] NSWDC 542

Sexual offences

Citation: R v Sams [2021] NSWDC 542
Court: District Court of New South Wales
Date: 1 September 2021
Judge(s): Bennett SC DCJ

Background

Following a jury trial in the Newcastle District Court, the offender was convicted on two counts of sexual intercourse with a child under ten years of age, contrary to s 66A(1) of the Crimes Act 1900. The offences were alleged to have occurred between 31 December 2007 and 31 December 2010 at Thornton, New South Wales, when the victim was aged four, five, or six years old.

The offender was arrested in December 2019 and granted bail until the jury returned guilty verdicts on 11 June 2021, at which point the Crown successfully applied for his detention. The sentence proceedings that followed therefore fixed 11 June 2021 as the commencement date for any custodial term.

An unusual and significant matter arose before sentencing was delivered. On 26 August 2021, a woman identifying herself as the offender's mother telephoned the judge's chambers and made statements to his Honour's Associate asserting that both the judge and the jury had been "paid off." The caller concluded by saying "Yeah, he's going down." The matter was referred to the Sheriff and NSW Police. The judge addressed this conduct on the record to ensure transparency, and confirmed it had no bearing on the sentence imposed.

  • Whether the two counts of sexual intercourse with a child under ten years carried objective seriousness above, at, or below the mid-range, having regard to the standard non-parole period of 15 years under the Crimes (Sentencing Procedure) Act 1999
  • How the offender's developmental delay bore on moral culpability and the appropriate sentence
  • Whether the COVID-19 pandemic constituted a mitigating factor in the custodial context
  • Whether special circumstances existed to justify reducing the non-parole period below the statutory default proportion
  • What aggregate sentence was appropriate across two separate counts

Decision

The court found that both offences fell below the mid-range of objective seriousness, though not at the lower end. The parties were largely in agreement on this point, with only marginal differences in their submissions. The judge applied the sentencing methodology confirmed in Muldrock v The Queen [2011] HCA 39 and Markarian v R [2005] HCA 25, using the standard non-parole period and maximum penalty as legislative guideposts rather than arithmetical anchors, and undertaking the required intuitive synthesis of all relevant factors.

The court gave significant weight to the offender's developmental delay, which had been identified through the fitness-for-trial process. This delay was treated as reducing the offender's moral culpability in respect of both counts. Count one was assessed as the more serious of the two because it involved ejaculation, indicative of achieved sexual gratification; count two, while still purposively sexual, did not involve that element.

The COVID-19 pandemic was accepted as a mitigating factor. The court acknowledged that the custodial environment during the pandemic imposed additional burdens of uncertain suspense on the offender and that this was properly taken into account in mitigation, provided it did not need to be proven to a high standard given the general nature of the circumstances.

The judge found special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999, warranting a non-parole period shorter than the default proportion. This reflected the offender's need for an extended period of supervised release to assist in rehabilitation, particularly in light of his developmental profile.

Orders Made

  • Count one: sentence of 5 years imprisonment, with a non-parole period of 1 year and 6 months
  • Count two: sentence of 4 years and 6 months imprisonment, with a non-parole period of 1 year and 6 months
  • Aggregate sentence: 5 years and 9 months imprisonment
  • Aggregate non-parole period: 2 years (special circumstances found)
  • Commencement date: 11 June 2021
  • Non-parole period expires: 10 June 2023
  • Head sentence expires: 10 March 2027

Key Takeaways

  • The District Court confirmed that the standard non-parole period and maximum penalty for s 66A(1) offences function as legislative benchmarks, not the starting point for arithmetic calculation. Sentencing requires intuitive synthesis of all objective and subjective factors.
  • Developmental delay established through fitness-for-trial assessments is directly relevant to the sentencing exercise, and the District Court treated it as reducing the offender's moral culpability for these offences.
  • Under the approach affirmed in Muldrock, a finding that offending falls below the mid-range of objective seriousness does not mechanically translate to a proportionate reduction from the standard non-parole period. The placement on the seriousness spectrum is one input among many.
  • The COVID-19 pandemic was accepted as a mitigating consideration in this sentence, on the basis that the custodial environment during the pandemic imposed added hardship, even without proof of specific adverse consequences to this offender.
  • An attempt to contact a judge's chambers to influence the outcome of proceedings carries potential criminal exposure under both s 322(c) of the Crimes Act 1900 (threatening to cause detriment to influence a judicial officer) and s 474.17 of the Criminal Code 1995 (Cth) (using a carriage service to menace, harass or cause offence). The court addressed the conduct transparently on the record while confirming it had no effect on the sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(1), 80AF, 322(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 22A, 54A, 54B; Part 4, Div 1A
- Criminal Code Act 1995 (Cth), s 474.17

Cases
- Imbornone v R [2017] NSWCCA 144
- Kesavarajah v The Queen (1994) 181 CLR 230
- Markarian v R [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen [2011] HCA 39
- R v Blanco (1999) 106 A Crim R 303
- R v Presser [1958] VR 45
- R v Qutami [2001] NSWCCA 353
- R v Todd (1982) 2 NSWLR 517
- Sabra v R [2015] NSWCCA 38
- Tepania v R [2018] NSWCCA 247
- The Queen v Olbrich (1999) 199 CLR 270
- Veen v R (No 2) [1988] HCA 14