Citation: R v Preston [2021] NSWDC 711
Court: District Court of New South Wales
Date: 27 August 2021
Judge(s): M L Williams SC DCJ
Background
The offender, a 45-year-old man, appeared for sentencing after pleading guilty to three counts of sexual intercourse with a person aged between ten and sixteen years, contrary to the now-repealed s 66C of the Crimes Act 1900. The offending occurred between August and October 1998, when the complainant was 13 or 14 years old and the offender was 22. Despite the complainant disclosing the offending to police in 1998, the offender was not charged in New South Wales until June 2020, some 22 years later.
The offending arose after the complainant and the offender connected through an internet chat room. The offender was aware from the outset that the complainant was 13. The complainant's mother collected him from Brisbane and he subsequently stayed at the family home at Nana Glen. The offending escalated from indecent contact to repeated penile/vaginal and penile/anal intercourse over a period of months.
The offender had an extensive Queensland criminal history involving repeated sexual offences against children, spanning convictions in 1997, post-1999, and 2012, culminating in a further conviction in 2018 for indecent treatment of a child. He had no prior New South Wales criminal history.
Legal Issues
- What sentence was appropriate for three counts of sexual intercourse with a child, having regard to the objective seriousness of the offending and the applicable maximum penalties?
- How should the six Form 1 matters (five counts of aggravated indecent assault and one count of committing an act of indecency) be taken into account?
- What weight should be given to the 22-year delay between the offending and charging?
- Whether the totality principle applied to the Queensland sentences, given the time gap between the NSW offending and the Queensland convictions?
- Whether special circumstances existed warranting a departure from the standard ratio between the non-parole period and the head sentence?
Decision
Guilty plea and discount: The court accepted that a 25% discount on the term of imprisonment was appropriate, reflecting the timing and circumstances of the plea. Full-time imprisonment was the only sentencing option in the circumstances; no alternative was considered.
Form 1 matters: The court dealt with the six Form 1 offences by giving greater weight to personal deterrence and the community's entitlement to retribution for serious offending, consistent with the guideline judgment on Form 1 matters. The Form 1 matters were taken into account in fixing the indicative sentence on Count 1 (sequence 9).
Delay and objective seriousness: The court noted the entirely unexplained 22-year gap between offending and charging but did not treat this as a mitigating factor going to the offending itself. The offender's pattern of repeated sexual offending against children, including convictions before and after the NSW offending, informed the weight given to personal and general deterrence.
Totality and interstate sentences: The court accepted that the totality principle can apply across state borders where offences were committed at or about the same time, following Mill v The Queen (1988) 166 CLR 59. However, applying RLS v R [2012] NSWCCA 236, the court found that the very lengthy time gap between the 1998 NSW offending and the later Queensland sentences made the totality principle of very little relevance here. The court found special circumstances, given the offender's reasonable prospects of rehabilitation, a diagnosed depressive disorder, his need for extended supervision, and the conditions imposed by the COVID-19 pandemic, which prevented family contact and visits to his seriously ill mother.
Orders Made
- The offender was convicted of each offence.
- A 25% discount was applied for the guilty pleas.
- Indicative sentences:
- Count 1 (sequence 9), taking into account Form 1 matters (sequences 3, 4, 5, 7, 8, and 14): 4 years 6 months
- Count 2 (sequence 11): 3 years 10 months
- Count 3 (sequence 12): 3 years
- An aggregate sentence of 5 years and 3 months, commencing 19 June 2020, was imposed.
- A non-parole period of 3 years and 4 months, expiring 18 October 2023, was set.
- Special circumstances were found.
Key Takeaways
- The District Court confirmed that the totality principle does not readily apply to reduce an NSW sentence by reference to prior or subsequent Queensland sentences where the offences were committed at materially different times, following RLS v R [2012] NSWCCA 236.
- Form 1 offences are accounted for by giving enhanced weight to personal deterrence and community retribution, rather than by treating them as additional discrete sentencing exercises.
- A 22-year unexplained delay between offending and charge did not, on the facts here, operate as a significant mitigating factor or reduce the objective gravity of the conduct.
- Special circumstances may be established through a combination of factors, including reasonable rehabilitation prospects, a mental health diagnosis, an extended supervision need, and difficult custody conditions, even where an offender has a serious and repeated criminal history.
- Where an offender's criminal history demonstrates a pattern of similar sexual offending against children across multiple jurisdictions and decades, the sentencing court will give substantial weight to both personal and general deterrence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61N, 66C (repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases:
- Imbornone v R [2017] NSWCCA 144
- Mill v The Queen (1988) 166 CLR 59
- R v CTG [2017] NSWCCA 163
- R v Qutami (2001) 127 A Crim R 369
- R v Thomas [2007] NSWCCA 269
- RLS v R [2012] NSWCCA 236
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146