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District Court 18 March 2022

R v Wingate

[2022] NSWDC 184

Sexual offences
CRIME SENTENCE

Citation: R v Wingate [2022] NSWDC 184
Court: District Court of New South Wales
Date: 18 March 2022
Judge: Bourke SC DCJ

Background

The offender, a man who had been living in Australia, was convicted by a jury in November 2021 on three counts of committing an act of indecency outside Australia on a person under 16 years of age, contrary to s 50BC(1)(a) of the Crimes Act 1914 (Cth). The offences occurred between February and June 2006 in Iloilo City, the Philippines, during a period when the offender had travelled there and married the mother of the victim.

The victim was 13 years old at the time of the offences. On three separate occasions, each approximately one week apart, the offender called the victim into a bedroom and touched her exposed breasts, purportedly to examine whether she was developing normally. Each examination lasted five to ten minutes and involved skin-on-skin contact with the victim's breasts. The victim's mother was present on each occasion.

The court found beyond reasonable doubt that the offender had falsely represented himself as having medical qualifications or experience. This representation explained why neither the victim nor her mother protested at the time of the examinations. The offender denied making any such claim, but the judge rejected that denial on the evidence of both the victim and her mother.

  • What were the objective and subjective circumstances relevant to sentencing for offences under s 50BC(1)(a) of the Crimes Act 1914 (Cth)?
  • How should the sentencing court determine facts after a jury verdict that does not specify findings, particularly regarding aggravating matters?
  • Whether the offending was properly characterised as planned or opportunistic.
  • What aggregate sentence and non-parole period were appropriate, having regard to totality principles and the offender's personal circumstances?
  • Whether the sentence should be backdated to account for time already spent in custody on a related detention order.

Decision

Factual findings at sentence: Because the jury's verdicts did not specify the facts found, Bourke SC DCJ determined the sentencing facts consistently with the verdicts. Aggravating matters required proof beyond reasonable doubt; matters in mitigation needed only to be established on the balance of probabilities. The judge found that the offender had falsely claimed medical expertise to facilitate the examinations, satisfied to the criminal standard.

Objective seriousness: The court assessed the offences as falling in the mid-range of objective seriousness. Each involved direct, skin-on-skin contact with a 13-year-old child's breasts over a sustained period. The conduct did not extend to the genital or anal area and did not involve physical cruelty beyond what was inherent in the offences themselves. The judge treated the offences as more opportunistic than planned, though some degree of planning was evident in the false medical representations. The presence of the victim's mother at each incident was an unusual feature, explained by the offender's deception rather than any conduct by the mother.

Deterrence and legislative purpose: The judge emphasised that offences under s 50BC were introduced specifically to deter Australians from sexually exploiting children in vulnerable overseas communities. Both general and personal deterrence were treated as important sentencing considerations, alongside the protection of children and denunciation of the conduct.

Aggregate sentence and totality: Indicative sentences of three years and two months were nominated for each count. Applying totality principles and a degree of accumulation to reflect that three discrete offences had been committed over separate occasions, the court imposed an aggregate sentence of four years and two months, with a non-parole period of two years and nine months. The non-parole period represented approximately 66% of the head sentence, which Bourke SC DCJ considered appropriate given the offender's age and medical conditions, which were likely to make custody more burdensome, and to allow meaningful supervision on release. The sentence was backdated to 16 December 2020, the date on which the offender was first taken into custody on these charges.

Orders Made

  • Aggregate sentence of four years and two months' imprisonment imposed.
  • Non-parole period of two years and nine months.
  • Sentence backdated to 16 December 2020.
  • Head sentence to expire 15 February 2025; non-parole period to expire 15 September 2023.

Key Takeaways

  • Under s 50BC(1)(a) of the Crimes Act 1914 (Cth), offences of committing acts of indecency on children outside Australia carry a maximum of 12 years' imprisonment, and the District Court confirmed that deterrence, both general and specific, is a particularly weighty consideration given the legislative purpose of protecting children from exploitation by Australian residents overseas.
  • Where a jury returns general verdicts, the sentencing judge must determine the factual basis for sentence in a manner consistent with those verdicts, proving aggravating matters to the criminal standard and mitigating matters on the balance of probabilities.
  • A false claim of medical expertise used to secure compliance from a victim and her carer was found to constitute a degree of planning, even though the offences were primarily characterised as opportunistic.
  • The District Court applied an aggregate sentence rather than individual concurrent or cumulative terms, consistent with the approach for multiple related offences, while still nominating indicative sentences for each count as required.
  • In setting the non-parole period at approximately 66% of the head sentence (below the standard ratio), the court took into account the offender's age and medical circumstances, which were likely to render the custodial term more onerous than for a younger, healthier offender.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A(2), 50BC(1)(a)

Cases
- Assheton [2002] WASCA 209
- Lee v The Queen [2000] WASCA 73
- Merrill v DPP [2018] VSCA 62
- R v GP [2010] NSWDC 300
- R v ONA [2009] VSCA 146
- R v Vanderzyden [2012] QCA 89
- Sage v The Queen [2007] NSWCCA 224
- Salman v Commonwealth DPP [2011] NSWCCA 192
- Weininger v R (2003) 212 CLR 629