Citation: R v Pineda [2021] NSWDC 849
Court: District Court of New South Wales
Date: 27 April 2021
Judge: Bourke SC DCJ
Background
The offender, a Filipino national who had been residing unlawfully in Australia since overstaying a tourist visa in 2005, was sentenced for a series of sexual offences committed against his niece. The victim, who was born in June 2005, was aged between 8 and 9 years at the time of the primary offending. The offender periodically lived with the victim's family at their unit in Westmead and would babysit the children while their mother worked.
The offending spanned several years. Two counts on the indictment involved sexual intercourse with a child under 10 years, contrary to section 66A(1) of the Crimes Act 1900. These included acts of cunnilingus and fellatio. Two further offences, dealt with on a Form 1 (a document that allows additional admitted offences to be taken into account without separate conviction), involved aggravated incitement of an act of indecency on a child under 10 and aggravated indecent assault of a child under 16. The final Form 1 offence occurred in 2018 when the victim was 13, at which point she disclosed the abuse to her mother by typing a message on an iPad.
The offender was not brought before police until April 2020, when a report of sexual harm was made. He declined to be interviewed in custody and was charged with the offences. He subsequently pleaded guilty at the earliest opportunity.
Legal Issues
- What was the appropriate aggregate sentence for two offences of sexual intercourse with a child under 10, taking into account two additional admitted offences on the Form 1?
- What weight should be given to the offender's plea of guilty, personal circumstances, and prospects of rehabilitation?
- How should the principles of accumulation and totality apply when fixing an aggregate non-parole period and head sentence?
- What role did the standard non-parole period of 15 years (for each principal offence) play as a guidepost in the sentencing exercise?
Decision
Bourke SC DCJ assessed the objective seriousness of the offences as significant. The court noted the victim's very young age, the gross breach of trust involved in offending against a niece within the family home, the use of grooming behaviour, the instructions to maintain secrecy, and the fact that the offending continued over multiple years and resumed when the victim was a teenager. These factors placed the conduct toward the higher end of the range of seriousness.
The court applied a 25 per cent discount to reflect the utilitarian value of the early guilty plea, as required under the Crimes (Sentencing Procedure) Act 1999. The court also considered the offender's personal circumstances, including that he had no prior criminal history, had arrived in Australia as an adult, had limited family support in Australia, and would likely be deported upon release. His isolation in custody was acknowledged as a hardship. The court noted some expression of remorse, though it was treated with measured caution.
On the question of accumulation, the court found that some accumulation of the two principal sentences was warranted because the offences arose from separate incidents separated in time. However, the totality principle required the court to ensure the aggregate sentence was not crushing overall. Indicative sentences were set before an aggregate sentence was calculated. The court also applied section 25AA of the Crimes (Sentencing Procedure) Act 1999, which requires sentencing in accordance with current sentencing patterns rather than those prevailing at the time of the offences.
The court imposed an aggregate sentence, comprising a head sentence and a non-parole period, with both terms commencing from the date the offender was taken into custody.
Orders Made
- Aggregate head sentence of seven years imprisonment, commencing 8 April 2020 and expiring 7 April 2027.
- Non-parole period of four years, expiring 7 April 2024, at which point the offender becomes eligible for release on parole.
- The court noted that upon release on parole, the offender would likely be taken into immigration detention prior to deportation to the Philippines.
- Indicative sentences: count 1 (including Form 1 matters) of five years and three months with a non-parole period of three years; count 2 of four years and nine months with a non-parole period of two years and nine months.
Key Takeaways
- Sexual intercourse with a child under 10 years carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 15 years under the Crimes Act 1900, both of which function as guideposts rather than automatic outcomes in the sentencing exercise.
- A 25 per cent discount on sentence is available where an offender pleads guilty at the earliest opportunity, reflecting the utilitarian value of that plea under the Crimes (Sentencing Procedure) Act 1999.
- Under section 25AA of the Crimes (Sentencing Procedure) Act 1999, courts must sentence offenders for child sexual assault offences in accordance with current sentencing patterns, not those applicable at the time of the offences, acknowledging shifts in community and judicial understanding of the harm caused.
- Where two or more offences are committed on separate occasions, some accumulation of sentences is generally appropriate, but the totality principle requires the court to ensure the combined sentence remains proportionate and not crushing.
- Likely deportation consequences following imprisonment are not a factor the sentencing court takes into account in fixing the sentence, consistent with established authority.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 25AA
Cases
- Chamseddine v R [2017] NSWCCA 176
- Colbert v R [2021] NSWCCA 38
- R v MJR (2002) 54 A Crim R 368
- R v Nelson [2016] NSWCCA 130
- R v PGM [2008] NSWCCA 172
- R v Tuala [2015] NSWCCA 8
- RP v R [2013] NSWCCA 192