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District Court 24 September 2021

R v Callaghan

[2021] NSWDC 838

Sexual offencesDrugsTraffic & driving
AGGREGATE SENTENCES ACCUMULATION, CONCURRENCY AND TOTALITY

Citation: R v Callaghan [2021] NSWDC 838
Court: District Court of New South Wales
Date: 24 September 2021
Judge: Sutherland SC DCJ

Background

The offender, a 37-year-old man, pleaded guilty to three substantive offences arising from a single day's interaction with a 12-year-old girl (referred to by the pseudonym "Maria") on 28 April 2020. The offences arose after the offender, who arrived at a public recreation area in Thornleigh with his own young daughter, approached Maria while she waited alone for a friend.

The offender persuaded Maria to travel with him to his granny flat in Dural on the pretext of charging her mobile phone. Once there, he supplied her with methylamphetamine. He then prevented her from leaving and, in circumstances where she felt controlled and was panicking, subjected her to sexual abuse on more than one occasion.

In addition to the three substantive charges, the offender asked the court to take into account four further offences listed in two Form 1 documents. These included additional sexual touching offences and a charge of driving whilst disqualified.

  • What were the appropriate indicative sentences for each substantive offence, applying a 25% discount for the guilty pleas?
  • How should the court apply the principle of totality when setting an aggregate sentence across multiple serious child sex offences and a drug supply offence?
  • To what extent should the Form 1 matters be reflected in the indicative sentences for the substantive charges to which they attached?
  • What non-parole period was warranted having regard to the overall criminality involved?

Decision

Sutherland SC DCJ sentenced the offender using the aggregate sentencing provision in section 53A of the Crimes (Sentencing Procedure) Act 1999, which requires the court to set indicative sentences for each individual charge before arriving at a single combined sentence. The 25% discount for the guilty pleas was applied to each indicative sentence and to the aggregate.

For the drug supply offence (supplying methylamphetamine to a child under 16, under section 25(1A) of the Drug Misuse and Trafficking Act 1985), taking into account the Form 1 driving whilst disqualified matter, the indicative sentence was five years.

For the first aggravated sexual intercourse offence (oral intercourse committed in the motor vehicle, with deprivation of liberty as the aggravating circumstance), the indicative sentence was six years with a four-year non-parole period. For the second aggravated sexual intercourse offence (penile-vaginal intercourse at the flat), taking into account the Form 1 matters including cunnilingus and two counts of intentional sexual touching, the indicative sentence was nine years with a six-year non-parole period.

The court applied the totality principle and ordered partial accumulation across the sentences to reflect the distinct nature of the individual offending. The aggregate head sentence was 12 years, with a non-parole period of nine years.

Orders Made

  • Aggregate head sentence of 12 years' imprisonment imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999
  • Non-parole period of nine years, commencing 29 April 2020 and expiring 28 April 2029
  • Additional term of three years, expiring 28 April 2032
  • Indicative sentence for drug supply (with Form 1 driving offence): five years
  • Indicative sentence for first aggravated sexual intercourse (oral, motor vehicle): six years, with a four-year indicative non-parole period
  • Indicative sentence for second aggravated sexual intercourse (penile-vaginal, flat, with Form 1 sexual touching offences): nine years, with a six-year indicative non-parole period

Key Takeaways

  • The District Court applied the aggregate sentencing regime under section 53A of the Crimes (Sentencing Procedure) Act 1999, requiring indicative sentences to be set for each charge before a combined sentence is fixed.
  • A 25% guilty plea discount was applied both to the individual indicative sentences and in determining the overall aggregate, consistent with established sentencing practice.
  • Where multiple serious child sex offences arise from a single course of conduct, partial accumulation of sentences is appropriate to reflect the gravity and distinct nature of each act of offending, moderated by the totality principle to avoid a crushing result.
  • Form 1 offences, including driving whilst disqualified and additional sexual touching charges, were taken into account in calibrating the indicative sentences for the substantive charges to which they respectively attached.
  • Aggravated sexual intercourse with a child between the ages of 10 and 14 carries a maximum penalty of 20 years' imprisonment, and the presence of circumstances of aggravation (here, deprivation of liberty) elevates the objective seriousness of the offending significantly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 66C(2), 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1A)

Cases
- Bell v The Queen [2018] VSCA 281
- Bourke v The Queen [2010] NSWCCA 22
- Dawkins v The Queen [2018] NSWCCA 278
- Ibbotson v The Queen [2020] NSWCCA 92
- KAB v The Queen [2015] NSWCCA 55
- R v AJ (Judge Shead SC, NSWDC, 27 August 2020, unreported)
- R v Bui (Judge Pickering SC, NSWDC, 27 November 2020, unreported)
- R v Burns (Judge Whitford SC, NSWDC, 30 March 2020, unreported)
- R v Imbornone [2016] NSWDC 305
- R v Qutami [2021] NSWCCA 353
- R v Ramon [2020] NSWDC 858
- R v Rosenberger (1994) 76 A Crim R 1
- R v Swain [2020] NSWDC 198
- R v Woods (2009) 195 A Crim R 173