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District Court 23 September 2021

R v Sanchez

[2021] NSWDC 561

Sexual offences

Citation: R v Sanchez [2021] NSWDC 561
Court: District Court of New South Wales
Date: 23 September 2021
Judge: Montgomery DCJ

Background

The offender, a 61-year-old man born in Chile, was sentenced following guilty pleas to four counts of indecent assault against two child victims, both of whom were his nieces. The offending spanned more than a decade. A fifth charge was taken into account on a Form 1 (meaning it was considered when sentencing on a related count, rather than attracting a separate penalty).

The first victim was aged between five and six at the time of the offending, which occurred at her family home in Fairfield. On three occasions, the offender exposed his penis and caused her to touch it. The second victim was aged between nine and ten at the time of the offending. On one occasion the offender touched her vagina through her clothing, and on another he lay behind her in a spooning position, rubbed her chest and nipples, pressed his genitals against her, and ejaculated.

Both victims read Witness Impact Statements to the court. The offender had made admissions to his wife shortly after the offending against the second victim came to light, and later made admissions to police during an electronically recorded interview following his arrest in September 2020.

  • What was the appropriate objective seriousness of each offence?
  • What discount applied to the sentence in light of the early guilty pleas?
  • How should the aggregate sentence be structured, taking into account the principle of totality and the offender's personal circumstances?
  • Whether any moderating factors (including prospects of rehabilitation and lack of prior convictions) warranted a significant reduction in the overall sentence.

Decision

Montgomery DCJ assessed the objective seriousness of the offences separately but noted several common features: the offending occurred over more than a decade, involved two victims, exploited the offender's familial access and the vulnerability and innocence of young children, and involved a significant age disparity. The Crown submitted that all offences fell in the mid-range of seriousness; the defence submitted that the earlier offences fell in the low range. The judge's reasoning on the precise findings as to range is not fully set out in the available portions of the judgment.

The offender received a 25% discount on his sentence for entering guilty pleas at the earliest available opportunity, consistent with the principles in R v Thompson; R v Houlton (2000) 49 NSWLR 383. The court noted that the offender had cooperated with police and had no prior criminal history, but found no significant moderating considerations in the overall instinctive synthesis of sentencing.

On rehabilitation, the court noted a psychologist's assessment that the offender presented a low risk of recidivism, making him ineligible for custodial or community sex offender programs. Any ongoing counselling identified by a separate report was directed at the offender's emotional wellbeing during incarceration rather than rehabilitation for community protection purposes.

The court applied an aggregate sentencing approach under section 25AA(3) of the Criminal Procedure Act 1986 (NSW) and took into account time already served in custody from the date of arrest on 22 September 2020.

Orders Made

  • The offender was convicted of each offence.
  • An aggregate sentence of imprisonment was imposed with a non-parole period of 2 years and 9 months and a total term of 3 years and 8 months.
  • The sentence commenced on 22 September 2020 and expires on 21 May 2024.
  • The non-parole period expires on 21 June 2023; the offender became eligible for parole consideration from that date.
  • The offender was directed to accept the supervision and guidance of Community Corrective Services and to obey all reasonable directions of that service.

Key Takeaways

  • A 25% discount for an early guilty plea was applied consistently with R v Thompson; R v Houlton, where the offender entered pleas at the earliest available opportunity and cooperated with police in a recorded interview.
  • Familial access, significant age disparity, and the exploitation of children's innocence and vulnerability were treated as aggravating features common to all offences, even where the individual acts were of short duration.
  • Under section 25AA(3), an aggregate sentence is available where an offender is convicted of multiple offences, allowing the court to impose a single combined term that reflects the overall criminality rather than simply accumulating individual sentences.
  • A finding of low recidivism risk did not operate as a significant mitigating factor where the offender was ineligible for sex offender programs and the identified counselling need was unrelated to community protection.
  • Indicative individual sentences (before aggregation) ranged from 2 years to 3 years and 3 months after the plea discount, reflecting the differing maximum penalties under sections 61E(1A) and 61M(2) of the Crimes Act 1900 (NSW) and the varying gravity of each incident.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E(1A), 61M(2)
- Criminal Procedure Act 1999 (NSW) (Sentencing Procedure), ss 5(1), 21A(2)(ea), 21A(2)(k), 21A(3)(f), 21A(5A), 25AA(3)

Cases
- R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- AH v R [2015] NSWCCA 51
- Henderson v R [2016] NSWCCA 8
- R v Cattell [2019] NSWCCA 297