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District Court 9 November 2021

R v BW

[2021] NSWDC 721

Sexual offencesAssault & violence

Citation: R v BW [2021] NSWDC 721
Court: District Court of New South Wales
Date: 9 November 2021
Judge: Bennett SC DCJ

Background

The offender, referred to as BW, stood trial in the District Court at Newcastle on an indictment containing six counts, including alternative counts. A jury returned guilty verdicts on four counts: two counts of aggravated sexual assault (sexual intercourse with a child under authority and under the age of ten years, contrary to s 66A(2) of the Crimes Act 1900) and two counts of assault with an act of indecency on a person under sixteen years (contrary to s 61M(2) of the Crimes Act 1900).

The victim, referred to as MW, was three or four years old at the time of the offending. The offences occurred across two separate occasions between May 2012 and July 2013, at locations in Raymond Terrace and Tomago in New South Wales. The offender was a person in authority over the victim.

The sentencing hearing proceeded after the offender had been permitted to remain on bail following the verdicts. Bail was revoked the day before sentence was imposed. The offender maintained his denial of any wrongdoing throughout.

  • How to assess the objective seriousness of the offences, including the relevance of the standard non-parole period (SNPP) benchmarks under Part 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999, following Muldrock v The Queen
  • Whether and to what extent the offender's personal circumstances, including chronic alcohol misuse and resulting physical limitations, affected his moral culpability and the severity of his punishment in custody
  • How to structure an aggregate sentence across four offences arising from two separate criminal episodes, with appropriate concurrence and accumulation between the counts
  • Whether special circumstances existed justifying a departure from the standard parole ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999

Decision

The court assessed the objective seriousness of the four offences by reference to the SNPP provisions and the maximum penalties. Bennett SC DCJ accepted the Crown's submission that counts 1 and 3 (the Raymond Terrace offences) fell below mid-range of objective seriousness, while counts 4 and 5 (the Tomago offences) fell at least at or slightly above mid-range. The court emphasised that this placement was a matter of judgment, not arithmetic, and that assessing objective gravity was one step within the broader process of intuitive synthesis required by Markarian v R.

On the question of moral culpability, the court noted that the offender's chronic alcohol misuse and associated physical damage would make his experience of custody more burdensome. However, the court found that the extent to which this could reduce his moral culpability was limited, particularly given his continued denial of all wrongdoing.

In structuring the sentence, the court applied a measure of concurrence between counts 1 and 3, which arose from the same occasion, and similarly between counts 4 and 5. At the same time, the court declined to wholly subsume any of the counts and imposed a degree of accumulation both within each pair and between the two criminal episodes.

The court found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, justifying a departure from the standard non-parole period ratio. The reasons given were that this was the offender's first period of custody, that his physical limitations would make incarceration more onerous, and that he would require an extended period on parole to support his reintegration into the community.

Orders Made

  • Count 1 (aggravated sexual assault, Raymond Terrace): non-parole period of 4 years and 6 months; head sentence of 7 years
  • Count 3 (assault with act of indecency, Raymond Terrace): non-parole period of 2 years and 6 months; head sentence of 3 years and 9 months
  • Count 4 (assault with act of indecency, Tomago): non-parole period of 5 years; head sentence of 7 years and 9 months
  • Count 5 (aggravated sexual assault, Tomago): non-parole period of 5 years; head sentence of 7 years and 9 months
  • Aggregate sentence commencing 16 April 2021: non-parole period of 5 years and 3 months, expiring 15 July 2026; head sentence of 8 years and 6 months, expiring 15 October 2029
  • Special circumstances found; standard parole ratio under s 44 departed from accordingly
  • Pre-sentence custody accounted for in the commencement date of 16 April 2021

Key Takeaways

  • The District Court confirmed that, following Muldrock v The Queen, the standard non-parole period functions as a legislative guidepost rather than a mandatory baseline, to be weighed alongside maximum penalties and all other relevant matters through a process of intuitive synthesis rather than staged arithmetic.
  • A conviction under s 66A(2) of the Crimes Act 1900 carries a maximum penalty of life imprisonment and an SNPP of 15 years; the court's assessment of where an individual offence sits within the range of objective seriousness directly informs, but does not mechanically determine, the resulting sentence.
  • Where multiple counts arise from two distinct criminal episodes, the sentencing court may apply partial concurrence within each episode and partial accumulation between episodes, rather than wholly subsuming related counts or treating all counts as fully cumulative.
  • Special circumstances justifying a reduced parole ratio can arise from a combination of factors: first-time custody, physical hardship that will intensify the experience of imprisonment, and the need for a longer supervisory period on parole during reintegration.
  • Continued denial of offending after conviction does not preclude the court from considering an offender's personal circumstances, but the court here found that denial limited the weight available to arguments about reduced moral culpability.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 44, 54A, 54B, Part 4 Div 1A

Cases
- Markarian v R [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- R v Fisher (1989) 40 A Crim R 442
- R v ND [2016] NSWCCA 103
- R v RC [2020] NSWCCA 76
- Scott v R [2020] NSWCCA 81
- Tepania v R [2018] NSWCCA 247
- The Queen v Olbrich [1999] 199 CLR 270