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District Court 28 September 2022

R v Cassell

[2022] NSWDC 471

Sexual offences
CRIME RELEVANT FACTORS ON SENTENCE EARLY GUILTY PLEA MULTIPLE OFFENCES TWO VICTIMS COURSE OF CONDUCT

Citation: R v Cassell [2022] NSWDC 471
Court: District Court of New South Wales
Date: 28 September 2022
Judge: Haesler SC DCJ

Background

In January 2021, during school holidays, two 15-year-old girls encountered a 43-year-old man, Wayne Cassell, in the early hours of the morning while travelling to Wollongong. Despite the girls repeatedly refusing his advances and seeking assistance from McDonald's staff, Cassell followed and intimidated them throughout the night. He was aware both girls were 15 and was himself the father of teenagers.

The offending escalated from initial sexual solicitation and intimidation into a sustained series of serious sexual assaults on a secluded beach. Cassell used threats, coercion, and physical force throughout. One of the victims photographed an act of sexual assault on her phone, and that photograph ultimately caused Cassell to retract his initial denials when confronted by police after his arrest on 27 January 2021.

Cassell was charged with multiple offences spanning sexual intercourse with children aged 14 to 16, intentionally inciting a child to engage in sexual touching, and stalking and intimidation. He entered guilty pleas before the matter reached the District Court, and the sentencing hearing proceeded on agreed facts.

  • What aggregate sentence was appropriate for 11 offences of sexual and intimidation offending against two child victims, committed in a single course of conduct?
  • What weight should be given to the early guilty pleas, including their utilitarian value in sparing the complainants from giving evidence?
  • How should the court treat additional offences listed on Forms 1 (matters taken into account without a separate conviction) when formulating individual and aggregate sentences?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio, having regard to the offender's health, background, and the impact of custody conditions including COVID and an assault while in custody.
  • What role did Cassell's background of hardship play in assessing his moral culpability, given the principles in Bugmy v The Queen?

Decision

Haesler SC DCJ found the offending was objectively serious, persistent, and involved two vulnerable child victims over the course of several hours. The judge characterised the conduct as escalating, predatory, and sustained, noting that Cassell had used threats and coercion to overcome repeated refusals before committing the assaults.

The court applied a 25% discount to each indicated sentence to reflect the utilitarian value of the early guilty pleas. The judge observed that the pleas allowed the matter to conclude without the complainants being required to give evidence, which was a significant mitigating factor. Care was taken not to erode that discount when formulating the aggregate sentence.

For the Form 1 matters (additional offences taken into account but not separately sentenced), the court applied the principle from Attorney General's Application No 1 of 2002 that such matters warrant an uplift to the sentence for the related head offence, while guarding against double counting where the matters formed part of a continuous sequence of events.

The court accepted that Cassell's background of hardship reduced his moral culpability to a degree, consistent with Bugmy v The Queen, but found that a significant deterrent sentence remained necessary given the nature and persistence of the offending. Special circumstances were found, having regard to the offender's ill health, an assault he suffered in custody, the impact of COVID-19 on conditions of imprisonment, and the need for an extended period of supervised parole. This finding justified a reduction in the proportion of the sentence to be served before parole eligibility.

Orders Made

Indicated sentences (each incorporating a 25% early guilty plea discount and, where applicable, Form 1 uplifts):

  • Sequence 1 (sexual intercourse with a child 14 to 16): 2 years and 3 months
  • Sequence 2 (sexual intercourse with a child 14 to 16): 2 years and 3 months
  • Sequence 3 (intentionally incite child sexual touching, plus Form 1 Sequence 4): 9 months
  • Sequences 5 and 6 (stalk/intimidate): 9 months each
  • Sequence 8 (sexual intercourse with a child 14 to 16): 2 years and 7 months
  • Sequence 10 (sexual intercourse with a child 14 to 16, plus Form 1 Sequences 7 and 9): 3 years
  • Sequence 11 (sexual intercourse with a child 14 to 16): 2 years and 3 months
  • Sequence 12 (sexual intercourse with a child 14 to 16): 3 years
  • Sequence 13 (sexual intercourse with a child 14 to 16, plus Form 1 Sequence 15): 2 years and 7 months
  • Sequence 14 (sexual intercourse with a child 14 to 16, plus Form 1 Sequence 16): 2 years and 7 months

Aggregate sentence:

  • Total: 9 years imprisonment
  • Non-parole period: 5 years and 10 months (reflecting special circumstances)
  • Balance of term: 3 years and 2 months
  • Sentence commences: 27 January 2021
  • Eligible for parole: 26 November 2026
  • Sentence expires: 26 January 2030
  • Dr Furst's report to be provided to Community Corrections and Justice Health

Key Takeaways

  • The District Court confirmed that Form 1 matters forming part of a continuous sequence of offending warrant an uplift to the relevant head sentence, but the sentencing court must take active steps to avoid double counting when the Form 1 matters are closely connected factually to the head offence.

  • A 25% discount for utilitarian value of an early guilty plea was applied across all offences, consistent with R v Thompson; R v Houlton, with particular weight given to the fact that the pleas spared two child complainants from giving evidence at trial.

  • Under Bugmy v The Queen, a background of hardship and disadvantage may reduce an offender's moral culpability even for serious offences, though it does not remove the need for a substantial deterrent sentence where the offending is persistent and involves vulnerable victims.

  • Special circumstances justifying a departure from the standard non-parole period ratio can encompass a combination of factors, including the offender's ill health, an assault suffered in custody, COVID-19 conditions, and the need for an extended period on supervised parole following release.

  • Aggregate sentencing for multiple offences arising from a single course of conduct requires the court to reflect the totality of the criminality without simply accumulating the individual sentences, and to preserve, rather than erode, any discount granted for early pleas.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(3), 66DB(b), 66DD(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Burrell v R (2000) 114 A Crim R 207; [2000] NSWCCA 262
- Butters v R [2010] NSWCCA 1
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (2013) 249 CLR