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District Court 9 August 2022

R v Treverrow

[2022] NSWDC 481

Sexual offencesTheft & property

Citation: [2022] NSWDC 481
Court: District Court of New South Wales
Date: 9 August 2022
Judge: Bennett SC DCJ

Background

The offender, a man aged 48 at the time of the offence, was found guilty by a jury of breaking and entering a dwelling house at Mossy Point and committing a serious indictable offence within it, namely aggravated sexual touching. The victim was a 20-year-old woman who had been asleep in her bedroom at the time. The offender and victim were strangers before the evening in question.

On the night of 15 to 16 January 2021, the offender had socialised at the victim's father's home as a guest of the father's partner. After midnight, the victim went to bed while the guests remained in the house. When the guests eventually left, the victim's father closed but did not lock the front door. The offender was offered accommodation elsewhere but, approximately 30 minutes after leaving, drove his vehicle back to the victim's home.

The offender entered through the unlocked sliding door, went upstairs to the victim's bedroom, removed her bedding, and sexually touched her inner thighs and genital area before she repeatedly said "no" and he ceased and fled. The jury found him guilty following a trial at Bega District Court between 26 May and 1 June 2022.

  • What were the objective facts of the offence, and how serious was the conduct?
  • What subjective factors (personal circumstances, criminal history, rehabilitation) were relevant to the sentence?
  • Whether special circumstances existed to justify departing from the standard ratio of non-parole period to head sentence
  • What weight to give to aggravating and mitigating factors, including the standard non-parole period of five years

Decision

Bennett SC DCJ found the facts established beyond reasonable doubt and assessed the offence as objectively serious. The offender had broken into a home where he knew a person was present, entered a sleeping young woman's bedroom, and subjected her to sexual touching directed at her genital area despite her explicit refusals. The judge noted the conduct was committed for sexual gratification with no regard for the victim's resistance.

The court identified several aggravating features, including that the offender had previously been in the victim's home that very evening and chose to return under cover of darkness. Mitigating factors included the offender's lack of prior criminal history, his positive employment record, his role as a parent, and sound prospects for rehabilitation. The court gave these subjective matters appropriate weight without allowing them to overwhelm the gravity of the offending.

General deterrence attracted significant weight in the sentencing calculus. Specific deterrence and community protection were afforded lesser weight given the offender's circumstances and rehabilitation prospects. The court emphasised that the sentence must denounce the conduct and hold the offender accountable for the harm caused to the victim.

The court found special circumstances justified reducing the custodial component to one half of the total sentence (rather than the usual two-thirds non-parole period to head sentence ratio), primarily to allow the offender adequate time on parole to continue any required counselling. The court noted this was the offender's first period of imprisonment.

Orders Made

  • The offender was convicted of one charge of breaking and entering a dwelling house and committing a serious indictable offence (aggravated sexual touching) contrary to s 112(2) of the Crimes Act 1900
  • Non-parole period of 18 months imprisonment, commencing 9 August 2022, expiring 8 February 2024
  • Balance of sentence of a further 18 months, expiring 8 August 2025
  • Total head sentence of 3 years imprisonment
  • The backup charge of sexual touching was withdrawn

Key Takeaways

  • The District Court treated the combination of a home invasion in the early hours, the exploitation of a known vulnerability (an unlocked door and a sleeping occupant), and persistent sexual touching despite express refusals as collectively elevating the objective seriousness of the offending.
  • Under s 112(2) of the Crimes Act 1900, breaking and entering a dwelling and committing a serious indictable offence within it carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of five years where the offence involves sexual touching.
  • General deterrence carries significant weight in sentencing for offences of this kind, even where personal deterrence is considered less pressing due to favourable subjective circumstances.
  • Special circumstances can support a departure from the standard non-parole ratio where rehabilitation prospects are sound and a longer parole period would facilitate ongoing therapeutic intervention, including for a first-time prisoner.
  • Positive subjective factors such as an absence of prior convictions, stable employment, and genuine rehabilitation prospects are relevant mitigating considerations, but the court found they did not diminish the need for a meaningful custodial sentence in response to conduct of this nature.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HB, 61KC, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Div 1A
- Crimes Act 1914 (Cth)

Cases
- Cheung v R (2001) 209 CLR 1
- Markarian v R [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- R v Isaacs (1997) 41 NSWLR 374
- R v Millwood [2012] NSWCCA 2
- R v Olbrich (1999) 199 CLR 162
- Savvas v R (1995) 183 CLR 1
- Totaan v R [2022] NSWCCA 75
- Veen v R (No 2) (1987-1988) 164 CLR 465