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District Court 13 August 2021

R v Wran (a pseudonym) (No 2)

[2021] NSWDC 808

Sexual offences
INCITEMENT

Citation: R v Wran (a pseudonym) (No 2) [2021] NSWDC 808
Court: District Court of New South Wales
Date: 13 August 2021
Judge: P Taylor SC DCJ

Note: All names in this judgment are pseudonyms. A suppression order prohibits publication of any material identifying or likely to identify the complainant.

Background

A jury convicted the offender (referred to by the pseudonym "David Wran") on four counts of sexual offending against a ten-year-old child, "Ruby Jones," the daughter of his wife. The offences occurred over approximately one month in late 2018, during periods when the offender was supervising Ruby at the family home while her mother was at work.

The conduct across the four counts included removing the child's undergarments without consent, two occasions of pushing his erect penis against her genital area without penetration (charged as attempted sexual intercourse), and directing her to remove her clothing and go to his bedroom. A fifth count, involving a later video call in which the offender made an explicit sexual request of the child, was dismissed by directed verdict for absence of one element, but the evidence from that incident was admitted without objection as tendency evidence on the four counts that proceeded to verdict.

At the time of the offences, the offender was subject to an extended supervision order. This sentencing decision (designated "No 2") followed an earlier decision in the same matter reported as R v Wran (a pseudonym) [2021] NSWDC 185.

  • Whether, for sentencing purposes, the court was bound to accept the jury's factual findings as reflected in the guilty verdicts, including the fuller account given by the complainant in her recorded interview
  • Whether the aggravating circumstance of being in a position of authority was established for counts 2, 3, and 4
  • How the applicable standard non-parole periods, maximum penalties, and principles of totality should operate across an aggregate sentence covering four distinct offences
  • What weight to assign to relevant sentencing factors, including the gravity of the conduct, the victim's age and vulnerability, the breach of trust, and any matters personal to the offender

Decision

The court rejected the defence submission at sentence that the facts underlying counts 2 and 3 should be limited to the preparatory acts of removing clothing, without including the subsequent physical contact with the victim's genital area. His Honour held that such a confined reading was inconsistent with the jury's verdict: the jury had been directed that acts merely preparatory to an offence do not constitute an attempt, and the court could not presume the jury acted contrary to those directions. The court accordingly sentenced on the basis of the complainant's full account as given in her recorded interview.

The circumstance of aggravation, that the victim was under the offender's authority, applied to counts 2, 3, and 4. The offender was the child's stepfather and was acting in a supervisory role over her at the relevant times, a position the court treated as plainly one of authority within the meaning of the relevant provisions.

In arriving at the aggregate sentence, the court worked through the applicable standard non-parole periods and maximum penalties for each count, applied the principle of totality (which requires that a combined sentence for multiple offences should reflect the overall criminality without becoming crushing), and took into account the relevant statutory aggravating and mitigating factors under the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Count 1: Convicted of aggravated indecent assault of a child under 16 years
  • Count 2: Convicted of attempting to have sexual intercourse with a child aged between 10 and 14 years in circumstances of aggravation (victim under the offender's authority)
  • Count 3: Convicted of attempting to have sexual intercourse with a child aged between 10 and 14 years in circumstances of aggravation (victim under the offender's authority)
  • Count 4: Convicted of inciting a child aged between 10 and 16 to carry out a sexual act, in circumstances of aggravation (victim under the offender's authority)
  • Aggregate sentence of nine years and eight months' imprisonment imposed, with a non-parole period of seven years and three months
  • Sentence to date from 27 July 2019, expiring 26 March 2029, with eligibility for parole from 26 October 2026

Key Takeaways

  • A sentencing court is bound by the jury's guilty verdict and cannot sentence on a narrower factual basis that would have been insufficient to establish the elements of the offence of which the jury convicted.
  • Where a jury has been directed that preparatory acts alone do not constitute an attempt, a sentencing court must proceed on the basis that the jury accepted the fuller account of the complainant's evidence when returning a guilty verdict.
  • The stepfather role, exercised in a supervisory capacity over the victim in the family home, satisfied the "position of authority" element required to establish the circumstances of aggravation under the relevant provisions of the Crimes Act 1900.
  • Aggregate sentencing across multiple serious child sexual offences requires careful application of the totality principle to ensure the combined sentence reflects overall criminality without being disproportionate.
  • Tendency evidence from a related incident, admitted without objection, can inform the factual matrix at sentence even where the count to which it most directly related was dismissed by directed verdict.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HC, 61M, 66C, 66DE, 344A, 578A
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5I, 9
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 24A, 53A, 54A, 54B, 54D
- Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Sch 1, cl 10

Cases
- Bell v R [2019] NSWCCA 251
- BT v R [2010] NSWCCA 267
- Carlton v The Queen (2008) 189 A Crim R 332
- Corby v R [2010] NSWCCA 146
- DAC v R [2006] NSWCCA 265
- Dawkins v R [2018] NSWCCA 278
- Franklin v R [2013] NSWCCA 122
- Gregory John Walsh v R [2015] NSWCCA 83
- Hartley v R [2020] NSWCCA 330
- Hordern v R [2019] NSWCCA 138
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Jurd v R [2020] NSWCCA 91
- Postiglione v The Queen (1997) 191 CLR 465
- R v BJW (2000) 112 A Crim R 1
- R v BTW (2000) 112 A Crim R 1
- R v Cage [2006] NSWCCA 304
- R v Fisher (1989) 40 A Crim R 442
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29
- R v KNL (2005) 154 A Crim R 268
- R v Wran (a pseudonym) [2021] NSWDC 185