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District Court 2 September 2022

R v Thompson

[2022] NSWDC 483

Sexual offences
SENTENCING PLEA OF GUILTY HISTORICAL CHILD SEXUAL ASSAULT FIRST OFFENCE MENTAL ILLNESS

Citation: R v Thompson [2022] NSWDC 483
Court: District Court of New South Wales
Date: 2 September 2022
Judge: Weinstein SC DCJ

Background

The offender, a woman aged nearly 70 at the time of sentencing, pleaded guilty to one count of sexual intercourse with a child under 10 years of age, contrary to section 66A of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years' imprisonment. A second offence of the same nature was taken into account on a Form 1 (a procedural mechanism allowing an additional offence to be considered at sentencing without a separate conviction).

The offending occurred in 1987 in a studio apartment in Potts Point. The victim, then aged 8 or 9, was staying with the offender during school holidays. The offender was a distant relative, known to the victim as "Aunt Elvira." The offending involved two separate incidents of oral sexual contact perpetrated on the child, one of which also involved a third party.

The victim reported the offending to police in April 2019, approximately 35 years after it occurred. Investigators obtained a listening device warrant, and a covertly recorded conversation between the victim and the offender in November 2019 captured admissions by the offender, including acknowledgements that what she had done was wrong and references to not having been "in her right mind" at the time.

  • What was the appropriate sentence for a first-time offender who pleaded guilty to historical child sexual assault, where the offending occurred some 35 years prior?
  • To what extent did the offender's diagnosed mental illness (delusional disorder and depression) reduce her moral culpability for the offending?
  • Whether "special circumstances" existed to justify a non-parole period shorter than the statutory default (which would ordinarily be three-quarters of the head sentence).

Decision

The court undertook the standard instinctive synthesis approach to sentencing, weighing objective seriousness against the offender's subjective circumstances. The offending was serious: it involved deliberate acts against a very young child in a position of trust. The recorded admissions, while demonstrating some insight, also showed the offender had attributed her conduct partly to alcohol and to not being "in her right mind."

Psychiatric evidence from two forensic psychiatrists (Dr Furst and Dr Jones) was before the court. The offender had been diagnosed with delusional disorder and depression in 2014. The court considered the extent to which this mental illness, which may have been present at the time of the offending, reduced the offender's moral culpability. This is a recognised sentencing principle: where mental illness meaningfully diminishes an offender's capacity to conform to the law or understand the wrongfulness of their conduct, that can reduce (though not eliminate) moral blameworthiness.

The Sentencing Assessment Report assessed the offender as a low risk of re-offending. However, it also noted that the offender had minimised the offending, denied that the offences occurred, and described the victim in derogatory terms, suggesting limited empathy and insight. The victim impact statement, read aloud in court, described lasting and profound harm to the victim across all aspects of her life.

The court imposed a head sentence of 3 years and 4 months imprisonment after applying a 10% discount for the guilty plea (reduced from a pre-discount sentence of 3 years and 9 months). A non-parole period of 1 year and 8 months was set, which is shorter than the statutory default, reflecting the court's finding of "special circumstances." The nature of those special circumstances is not fully set out in the extracted text, but the offender's mental health and age are likely relevant considerations consistent with the material before the court.

Orders Made

  • The offender was convicted of sexual intercourse with a child under 10 years of age contrary to section 66A of the Crimes Act 1900 (NSW).
  • The Form 1 offence was taken into account at sentencing.
  • A 10% discount was applied for the guilty plea.
  • A sentence of imprisonment of 3 years and 4 months was imposed, backdated by one day to account for pre-sentence custody.
  • The sentence commenced 1 September 2022 and expires 31 December 2025.
  • A non-parole period of 1 year and 8 months was imposed, with eligibility for parole from 30 April 2024.
  • The offender was warned that the Crimes (High Risk Offenders) Act 2006 (NSW) applies, and that the State may apply to the Supreme Court for an order for continuing detention or supervision if the court is satisfied to a high degree of probability that she poses an unacceptable risk of committing a further serious sexual offence.

Key Takeaways

  • A guilty plea to a single charge under section 66A of the Crimes Act 1900 (NSW), with a related offence on a Form 1, attracted a head sentence of approximately 3 years and 9 months before the guilty plea discount, reflecting the serious nature of the offending even where the offender is elderly and a first-time offender.
  • Diagnosed mental illness, in this case delusional disorder and depression, is capable of reducing moral culpability at sentencing, but its weight depends on the nature of the illness and the evidence of its connection to the offending conduct.
  • The 35-year gap between the offending and sentencing did not prevent imprisonment; the historical nature of the offence was one of many factors in the sentencing synthesis rather than a determinative consideration.
  • Special circumstances were found to exist, justifying a non-parole period shorter than the statutory default of three-quarters of the head sentence, though the District Court's reasoning on this point is not fully reproduced in the available extract.
  • Upon completing the custodial term, the offender remains subject to the continuing detention and supervision regime under the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to serious sexual offences regardless of the length of sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A
- Evidence Act 1995 (NSW), s 191
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002
- Luque v R [2017] NSWCCA 226
- R v Edwards (1996) 90 A Crim R 510
- R v Gavel [2014] NSWCCA 56
- R v Greenwood [2014] NSWCCA 64
- Tataan v R [2022] NSWCCA 75