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District Court 13 May 2022

R v AV (a pseudonym)

[2022] NSWDC 159

Sexual offences
SENTENCE CHILD SEX OFFENCES PROPER CONSIDERATION OF MEDICO LEGAL REPORTS

Citation: R v AV (a pseudonym) [2022] NSWDC 159
Court: District Court of New South Wales
Date: 13 May 2022
Judge: R Weber SC DCJ

Background

The offender, referred to by the pseudonym AV, pleaded guilty to 19 counts of child sexual offences, with a further four counts taken into account on a Form 1. The offences involved indecent assault, sexual intercourse with a child under 10, inciting an act of indecency, and sexual intercourse with a child aged between 10 and 14. The maximum penalties for the individual offence types ranged from 7 years to 25 years imprisonment.

The offending occurred over a period of years, beginning when the offender was approximately 14 or 15 years old and the victim was 8 years old. The offender and victim were known to each other through their families, who shared ties to the same Samoan village and the same church. The offender had moved into the victim's family home, and the offending took place largely at night in the shared bedroom.

A critical feature of the sentencing exercise was that the offender was a juvenile at the time of all the relevant offending. This had two direct procedural consequences: an Intensive Corrections Order was not available as a sentencing option, and no standard non-parole periods applied to the charges.

  • What sentence was appropriate for a juvenile offender who pleaded guilty to a large volume of serious child sexual offences committed over an extended period?
  • How should the utilitarian value of guilty pleas entered at different stages be reflected in the discounts applied to individual counts?
  • What role did the offender's youth at the time of offending play in the sentencing exercise?
  • Whether the matter should be resolved by way of aggregate sentence, and how the principles of proportionality, accumulation, concurrency, and totality were to be applied in that context.
  • Whether any sentence other than full-time custody was appropriate.

Decision

The court proceeded on agreed facts and applied discounts to individual counts reflecting the utilitarian value of pleas, with the parties agreeing that certain counts attracted a 25% discount and others a 10% discount. The Form 1 matters were taken into account as factors increasing the sentences for the principal offences to which they were attached, reflecting personal deterrence and the community's right to retribution.

The court found that the offender's juvenile status at the time of offending was a significant mitigating consideration but concluded that the nature, volume, and gravity of the offending made any sentence other than full-time custody untenable. The court described this conclusion as one that "could barely be gainsaid."

The sentencing judge applied the instinctive synthesis methodology described by McHugh J in Markarian v The Queen (2005) 228 CLR 357, weighing objective seriousness, aggravating and mitigating factors, and the applicable discounts before arriving at indicative sentences for each count. Special circumstances were also found, affecting the ratio between the head sentence and the non-parole period in a manner favourable to the offender.

The court imposed an aggregate sentence rather than individual cumulative sentences, finding that this approach best accommodated the principles of proportionality, accumulation, concurrency, and totality across a large number of counts spanning multiple offence categories.

Orders Made

  • AV was convicted of all offences before the court.
  • An aggregate sentence of 4 years and 6 months imprisonment was imposed, with a non-parole period of 3 years.
  • The sentence commenced on 23 April 2022.
  • The non-parole period expires on 22 April 2025, with the balance of the sentence expiring on 22 October 2026.

Key Takeaways

  • Where an offender was a juvenile at the time of offending, no standard non-parole periods apply and an Intensive Corrections Order is not available as a sentencing option under the relevant New South Wales legislation.
  • Juvenile status at the time of offending is a significant mitigating factor, but it does not preclude a sentence of full-time custody where the offending is serious, prolific, and sustained.
  • An aggregate sentence is an available and sometimes preferable mechanism where a large number of counts across multiple offence categories are involved, provided the court identifies indicative individual sentences and formally records that an aggregate sentence is being imposed.
  • Form 1 matters are to be taken into account by increasing the sentence for the principal offence to which they relate, reflecting personal deterrence and retributive considerations, rather than by imposing separate penalties.
  • The District Court confirmed its approach of applying the instinctive synthesis described in Markarian v The Queen, weighing all relevant factors together rather than applying a purely mathematical or sequential method to arrive at the final sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 66C(1), 66O(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Markarian v The Queen (2005) 228 CLR 357
- BP v R [2010] NSWCCA 159
- Bugmy v R (2013) 249 CLR 571
- Devany v R [2012] NSWCCA 285
- JA v R [2021] NSWCCA 10
- Lloyd v R [2022] NSWCCA 18
- R v Elliott and Blessington [2006] NSWCCA 305
- R v Hearne [2001] NSWCCA 37
- R v Millwood [2012] NSWCCA 2
- R v Qutami [2001] NSWCCA 353