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District Court 9 November 2021

Regina v RICHARDS

[2021] NSWDC 603

Sexual offencesDrugsFirearms & weapons
CRIMES SEXUAL OFFENCES SEXUAL TOUCHING A CHILD AGED 10 16 YEARS BACK UP OFFENCES ON S166 CERTIFICATE POSSESS PROHIBITED DRUG

Citation: Regina v Richards [2021] NSWDC 603
Court: District Court of New South Wales
Date: 9 November 2021
Judge(s): Lerve DCJ

Background

The offender was a 39-year-old man living in a small country town who worked as a Student Learning Support Officer at the high school attended by the victim, a girl who turned 15 during the period of offending. He also co-coached a female League Tag team in which the victim participated. He exploited both roles to initiate contact and build a relationship with her.

From early 2019, the offender conducted a sustained campaign of grooming the victim over many months, using SnapChat and other messaging platforms to send sexually explicit messages, photographs and videos, and purchasing gifts. The offending escalated to physical contact, culminating in an incident in late January or early February 2020 in which the offender digitally penetrated the victim and performed other sexual acts on her at a local park. A covert phone call lawfully recorded by police in November 2020 captured the offender stating he had no regrets about "getting with" the victim.

The offender pleaded guilty to three substantive offences: procuring or grooming a child for unlawful sexual activity, aggravated sexual intercourse with a child aged 14 to 16 years, and sexual touching of a child aged 10 to 16 years. Five further matters were dealt with via a section 166 Certificate from the Local Court, including a sexual act with a child, possessing a prohibited drug (cannabis seeds), handling explosives without a licence (fireworks), and two counts of possessing prohibited weapons (zombie knives and a slingshot).

Legal Issues

  • What discount applied to the guilty pleas for the substantive offences and the section 166 Certificate matters?
  • How should the objective seriousness of each offence be assessed, including whether there is a hierarchy among types of sexual intercourse?
  • Which statutory aggravating factors under section 21A of the Crimes (Sentencing Procedure) Act 1999 were established, and how should double counting be avoided?
  • What weight, if any, should be given to the offender's prior good character, given that it assisted him in gaining access to the victim?
  • Whether the offender was remorseful, and whether he had good prospects of rehabilitation.
  • Whether special circumstances existed justifying a variation to the standard non-parole period ratio.
  • What aggregate sentence was appropriate under section 53A of the Crimes (Sentencing Procedure) Act 1999?
  • How should the section 166 Certificate matters be dealt with in light of the primary offending?

Decision

Guilty plea discounts

The offender received a full 25% discount for the utilitarian value of his guilty pleas across all matters. The three substantive offences were committed for sentence from the Local Court, and the pleas were adhered to at the District Court hearing. The section 166 Certificate matters were pleaded guilty to at the first available opportunity (at [3]).

Objective seriousness

The grooming offence was assessed as above mid-range in seriousness. Lerve DCJ identified the offender's significant position of trust (as a school support officer and sports coach), the persistent and ongoing nature of the conduct over many months, the approximately 25-year age gap, and the offender's jealousy and controlling behaviour when the victim socialised with age-appropriate peers (at [44]).

The charge of aggravated sexual intercourse with a child aged 14 to 16 years (by digital penetration) was placed at the low end of the mid-range of seriousness. The court confirmed there is no hierarchy among types of sexual intercourse, and each case must be assessed on its own facts. The victim was towards the upper end of the age range, but the age difference and breach of trust remained significant (at [45]-[48]). The sexual touching charge was assessed as within the mid-range, with similar considerations applying (at [49]).

Statutory aggravating factors

The breach of trust factor under section 21A(2)(k) was made out, but the court declined to give it additional weight because abuse of trust had already been factored into the objective seriousness assessment, and doing otherwise would constitute impermissible double counting (at [52]). The vulnerability aggravation under section 21A(2)(l) was not established on the facts (at [53]). The substantial emotional harm aggravation under section 21A(2)(g) was also not made out: while the victim's impact statement was described as powerful and clearly referenced ongoing counselling, the court found it was not sufficient on its own without corroborating professional evidence such as a report (at [68]).

Prior good character and remorse

The court found the offender's prior good character could not be given its usual mitigating weight. His lack of criminal record assisted him in obtaining employment at the school, which in turn provided the access that enabled the offending (at [57]). The court declined to find the offender was remorseful. The lawfully recorded telephone call showed him stating he had no regrets about meeting or "getting with" the victim, and the Sentence Assessment Report recorded that he minimised his conduct, described the relationship as a "close friendship," and was largely focused on the impact on himself and his family (at [87]). Despite the absence of remorse, the court found good prospects of rehabilitation on the basis of strong family support, his mother's willingness to assist with counselling, and his lack of prior record (at [88]).

Special circumstances, aggregate sentence, and section 166 matters

Special circumstances were found, justifying a departure from the standard ratio between the non-parole period and the balance of term. The basis for that finding was the need for psychological intervention and community reintegration, the offender's age, the fact this was his first time in custody, and the partial accumulation of sentences (at [82]). An aggregate sentence was imposed under section 53A, with meaningful partial accumulation attributed to the grooming offence given its extended duration, and slight accumulation as between the sexual touching and sexual intercourse charges, which arose from the same incident (at [92]). The sexual act with a child charge on the section 166 Certificate attracted a sentence of imprisonment imposed concurrently with the intercourse charge, given the two acts occurred in immediate succession (at [93]). The remaining section 166 matters (drugs, explosives, weapons) were dealt with by conviction and no further penalty under section 10A, with the drugs and weapons ordered forfeited (at [94]).

Orders Made

  • The offender is sentenced to an aggregate sentence of 6 years and 6 months with a non-parole period of 4 years and 4 months.
  • The non-parole period commences 3 December 2020 and expires 2 April 2025. The balance of term commences 3 April 2025 and expires 2 June 2027.
  • The offender is eligible for release to parole at the expiration of the non-parole period, with the court recommending release.
  • In respect of the charges of Possess Prohibited Drug, Handle Explosives Without Licence, and two charges of Possess Prohibited Weapon (Sequences 17 to 20): the offender is convicted and pursuant to section 10A no further penalty is imposed.
  • The cannabis seeds and weapons are forfeited to the Crown for destruction.

Key Takeaways

  • A sentencing court must avoid double counting when applying statutory aggravating factors: where abuse of a position of trust is already taken into account in assessing the objective seriousness of the offending, it cannot then be given further weight as a statutory aggravating factor under section 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (at [52]).

  • Prior good character carries diminished mitigating weight where the offender's unblemished record directly facilitated the commission of the offence, for example by enabling the offender to pass working-with-children checks and obtain employment that provided access to the victim (at [57]).

  • A victim impact statement alone may be insufficient to establish the statutory aggravating factor of substantial emotional harm under section 21A(2)(g): the District Court found the factor not made out where the Crown had not obtained a professional report to corroborate the harm described in the statement (at [68]).

  • There is no hierarchy among types of sexual intercourse for the purposes of assessing objective seriousness under section 66C of the Crimes Act 1900. Digital penetration is not to be treated as inherently less serious than other forms, and each case is assessed on its own circumstances (at [45]-[47]).

  • Prospects of rehabilitation may be assessed favourably even where remorse is not established, provided there is other supporting material such as strong family support, willingness to engage with treatment programmes, and the absence of a prior criminal record (at [88]).

Legislation and Cases Referenced

Legislation
- Crimes Act , 1900
- Crimes (Sentencing Procedure) Act , 1999
- Criminal Procedure Act , 1986
- Drug Misuse and Trafficking Act , 1986
- Explosives Act , 2003
- Weapons Prohibition Act , 1998

Cases
- Betts v R [2015] NSWCCA 39
- Cahyadi v R [2007] NSWCCA 1
- Culbert v R [2021] NSWCCA 38
- Doan v R (2000) 50 NSWLR 115
- Greaves v R [2020] NSWCCA 140
- Greenwood v R [2014] NSWCCA 64
- Jolly v R [2013] NSWCCA 76
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v BA [2014] NSWCCA 148
- R v Gavel [2014] NSWCCA 56
- R v Muldoon unrep. NSWCCA 13.12.1990
- R v PGM (2008) 187 A Crim R 152
- R v Tuala [2015] NSWCCA 8
- R v Van Ryn [2016] NSWCCA 1
- Imbornone v R [2017] NSWCCA 144