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District Court 18 October 2021

R v O’Donnell

[2021] NSWDC 749

Sexual offences
OFFEND SENTENCING — NON PAROLE PERIOD — STANDARD NON

Citation: R v O'Donnell [2021] NSWDC 749
Court: District Court of New South Wales
Date: 18 October 2021
Judge: M L Williams SC DCJ

Background

The offender, a 19-year-old man, met a 12-year-old girl online via Snapchat in April 2020. The two agreed to meet in person, and at that meeting the offender committed a series of sexual offences against the victim at a sporting ground in West Wallsend, near Newcastle. He also filmed part of the encounter on his mobile phone and later admitted to sending the recording to a friend.

The victim reported the offending to her mother approximately two months later, and police subsequently identified and arrested the offender. Upon police attendance at his home, the offender made admissions and participated in a recorded interview. He had no prior criminal record.

The offender pleaded guilty to four principal offences, with three additional offences listed on a Form 1 to be taken into account on sentence. He had been held in custody since his arrest on 4 August 2020.

  • What aggregate sentence and non-parole period were appropriate given the objective seriousness of the offending and the applicable maximum penalties and standard non-parole periods?
  • What weight should be given to mitigating factors, including the offender's youth, mental health, social isolation, absence of prior convictions, and guilty pleas?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the balance of the term?
  • How the Form 1 offences should be treated in fixing indicative sentences for the principal offences?

Decision

The court accepted a 25 per cent discount on each sentence in recognition of the guilty pleas, a concession made by defence counsel. The principal offences involved three counts of sexual intercourse with a child aged between 10 and 14 (each carrying a maximum of 16 years and a standard non-parole period of seven years) and one count of disseminating child abuse material (maximum 10 years, no standard non-parole period). The Form 1 matters, including further sexual intercourse and a producing child abuse material offence, were taken into account in fixing the indicative sentences for the relevant principal counts.

In assessing objective seriousness, the court noted that the offending involved multiple acts of penetration and the recording and sharing of child abuse material, but accepted it was not at the most serious end of the spectrum. The court declined to find that the offender had instigated the meeting, treating that question neutrally on the agreed facts, although it noted he had asked the victim to bring underwear to the encounter.

On the subjective case, the court received a Sentencing Assessment Report and a detailed psychologist's report. The court considered the offender's difficult upbringing, including parental conflict, his mother's drug use, social isolation, history of bullying, and limited intellectual and employment history. The psychologist identified features consistent with a mild intellectual disability and a diagnosable depressive condition. These factors reduced the offender's moral culpability to a modest degree, though the court observed they did not explain or excuse the offending. The offender was assessed at a medium risk of re-offending.

The court found special circumstances, warranting a non-parole period proportionally shorter than the standard ratio. This finding reflected the offender's need for an extended period of supervised parole to support his rehabilitation, given his vulnerabilities and the fact that he would be serving his sentence in protective custody. The court also consulted sentencing statistics and comparable published decisions to check the proposed sentences against the range imposed in similar cases.

Orders Made

  • The offender was convicted of each offence.
  • Indicative sentence for Sequence 3 (including Form 1 matters, Sequences 1 and 2): two years and six months, with an indicative non-parole period of 16 months.
  • Indicative sentence for Sequence 4: two years and three months, with an indicative non-parole period of 15 months.
  • Indicative sentence for Sequence 5 (including Form 1 matter, Sequence 7): two years and eight months, with an indicative non-parole period of 18 months.
  • Indicative sentence for Sequence 8 (including Form 1 matter, Sequence 6): 16 months.
  • Aggregate sentence of three years and four months, commencing 4 August 2020.
  • Non-parole period of 22 months, expiring 3 June 2022.
  • Special circumstances found.

Key Takeaways

  • The District Court confirmed that standard non-parole periods and maximum penalties serve as important yardsticks in the sentencing exercise, but do not operate mechanically where significant mitigating factors are present.
  • A 25 per cent discount for guilty pleas was applied across all principal offences, consistent with the utilitarian value of early admissions in child sexual assault matters where the victim is spared a contested hearing.
  • Youth, social isolation, a difficult family background, and diagnosed psychological conditions can reduce an offender's moral culpability, even where the objective seriousness of the offending remains significant.
  • Special circumstances may be established where an offender's particular vulnerabilities, including the need to serve a sentence in protective custody and a requirement for supported reintegration, call for an extended parole period relative to the total term.
  • Sentencing courts are expected to consult available statistics and comparable cases on the Judicial Information Research System (JIRS) as a check on the appropriateness of proposed sentences, even where neither party places that material before the court directly.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 3A (purposes of sentencing)
- Crimes Act 1900 (NSW), including ss 66C(1), 66DB(a), 91H(2)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (guideline judgment on Form 1 offences)
- R v Thomas [2007] NSWCCA 269 (treatment of victim impact statements)
- R v McClymont (unreported, NSWCCA, 17 December 1992)
- Franklin v The Queen [2013] NSWCCA 122
- R v RD [2014] NSWCCA 103 (comparable case considered on aggregate sentencing)