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District Court 31 May 2022

R v PLW

[2022] NSWDC 561

Sexual offences
MID

Citation: R v PLW [2022] NSWDC 561
Court: District Court of NSW
Date: 31 May 2022
Judge: Tupman DCJ

Background

The offender, a man then aged 55, appeared for sentencing on four substantive charges of child sexual assault involving three separate victims. The offending occurred between 2001 and 2004, when the offender was in his early to mid-thirties. Three further offences were placed on a Form 1 to be taken into account on sentence.

Two of the victims, CB and AB, were children of a family relative whom the offender visited regularly in Queanbeyan. The third victim, EH, was the stepdaughter of a woman with whom the offender later entered a relationship. The offending against all three victims occurred in domestic settings, often while the children were asleep or nearly asleep in their beds.

The offender pleaded guilty in the Local Court at the earliest opportunity, attracting a 25% discount under the Early Appropriate Guilty Plea Scheme. Three of the substantive charges and two of the Form 1 charges were offences of sexual intercourse with a child under 10 contrary to s 66A of the Crimes Act 1900 (NSW). The remaining charges involved indecent assault of a child under 16, contrary to s 61M(1) of the same Act.

  • What sentences were appropriate for each substantive offence, having regard to the objective seriousness of the conduct, the mitigating factors, and the 25% guilty plea discount?
  • How should the sentences for multiple offences against multiple victims be structured, balancing accumulation and concurrency to reflect total criminality without resulting in a crushing sentence?
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default, given this was the offender's first time in custody and he had significant medical and mental health conditions.

Decision

Tupman DCJ assessed the objective seriousness of the offending as ranging from below to the middle of the range. The offences were serious: five of the seven acts involved sexual intercourse with children under 10, and the offending was repeated, opportunistic, and involved a clear breach of trust. Two victim impact statements were tendered and taken into account.

The court noted several mitigating factors. The offender had no prior relevant criminal history, had been diagnosed with depression and ADHD, experienced back pain and hearing loss, and had a problem with alcohol that likely contributed to some of the offending. A risk assessment indicated he presented a medium risk of reoffending generally, but below average risk of sexual reoffending, with relatively good prospects of rehabilitation.

Each substantive sentence was reduced by 25% to reflect the early guilty plea. The court set indicative sentences of 3 years (sequence 1), 3 years 9 months (sequence 8), 4 years 6 months (sequence 9), and 2 years 3 months (sequence 6). Full accumulation across all offences would have produced a term of just over 10 years, which the court regarded as excessive when assessed against the offender's total criminality.

Tupman DCJ determined an aggregate sentence of 6 years was appropriate. The court found special circumstances justifying a non-parole period of 4 years rather than the default three-quarters of the total term: it was the offender's first custodial sentence, his medical and mental health conditions would make custody particularly burdensome, and he would likely receive limited psychiatric treatment in custody given his below-average sexual reoffending risk assessment. A longer parole period of 2 years was set accordingly.

Orders Made

  • The offender was convicted on all offences.
  • An aggregate term of imprisonment of 6 years was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999, commencing 27 May 2022 and expiring 26 May 2028.
  • An aggregate non-parole period of 4 years was set, commencing 27 May 2022 and expiring 26 May 2026.
  • Parole period of 2 years, commencing 27 May 2026 and expiring 26 May 2028.
  • Indicative sentences: Sequence 1 (3 years); Sequence 6 (2 years 3 months); Sequence 8 (3 years 9 months); Sequence 9 (4 years 6 months).
  • Form 1 offences taken into account for sequences 1, 6, and 9.

Key Takeaways

  • An aggregate sentence of 6 years was imposed for seven acts of child sexual assault across three victims, with full accumulation rejected as producing a result that would be crushing when assessed against total criminality.
  • Special circumstances were established on multiple grounds: first time in custody, medical conditions making imprisonment more burdensome than usual, and a likelihood of limited psychiatric treatment in prison. This justified a non-parole period of 4 years rather than the standard default.
  • A 25% discount applied across all sentences under the Early Appropriate Guilty Plea Scheme, reflecting guilty pleas entered in the Local Court at the earliest opportunity.
  • The offender's below-average assessed risk of sexual reoffending and relatively good rehabilitation prospects were relevant to both the special circumstances finding and the likely conditions of his imprisonment.
  • Where multiple offences involve the same complainant but different occasions, the District Court confirmed that complete concurrency is not appropriate; partial accumulation is required to reflect the distinct criminality of each act.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A (sexual intercourse with child under 10)
- Crimes Act 1900 (NSW), s 61M(1) (indecent assault of child under 16)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA (Early Appropriate Guilty Plea discount)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (Form 1 additional offences)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A (aggregate sentencing)

Cases cited: No cases were cited in the judgment.