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District Court 9 December 2022

R v Eldridge

[2022] NSWDC 621

Sexual offences
CRIME SENTENCING

Citation: R v Eldridge [2022] NSWDC 621
Court: District Court of New South Wales
Date: 9 December 2022
Judge: Fitzsimmons SC DCJ

Background

The offender, aged 24 at the time of the offending, made contact with a 14-year-old victim through Snapchat in October 2021. He falsely told her he was 18 years old. The following day, the two met in person after he collected her by car from a train station.

Over the course of that afternoon, the offender committed two acts of sexual intercourse with the victim: oral intercourse in bushland near her home and penile-vaginal intercourse on the veranda of her home. Both acts were recorded on video. The offender's DNA was later identified on the victim's clothing. He was arrested two days after the offending and admitted to the conduct in a police interview, though he claimed the victim had told him she was 17 and had consented throughout.

The offender pleaded guilty to two counts of sexual intercourse with a child aged 14 or above but under 16 years, contrary to s 66C(3) of the Crimes Act 1900 (NSW), at the Central Local Court on 30 June 2022. The maximum penalty for each offence is 10 years imprisonment.

  • What was the objective seriousness of each offence, having regard to the circumstances of the conduct?
  • What subjective circumstances mitigated or otherwise affected the appropriate sentence?
  • What guilty plea discount applied and at what level?
  • Whether imprisonment was the only appropriate sentencing option (the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (NSW))?
  • Whether special circumstances existed to justify a variation to the standard non-parole period ratio?
  • How should the sentences for the two counts be structured, including the degree of accumulation?

Decision

His Honour found that no penalty other than imprisonment was appropriate, being satisfied that the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (NSW) was met. The sentencing court applied the purposes of sentencing set out in s 3A of that Act, including adequate punishment, deterrence, community protection, rehabilitation, accountability, denunciation, and recognition of harm to the victim.

A 25% discount was applied to the pre-discount sentence for each count, reflecting the utilitarian value of the early guilty pleas. The base sentence for count 1 (oral intercourse) was assessed at 3 years, reduced to 2 years and 3 months. The base sentence for count 2 (penile-vaginal intercourse) was assessed at 3 years and 6 months, reduced to 2 years and 7 months. The court determined that partial accumulation of the sentences was necessary to reflect the total criminality of the two offences.

Special circumstances were found to exist under the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court identified two bases: it was the offender's first time in custody, and he would benefit from additional supervision, assistance, and rehabilitation upon release. This justified setting a non-parole period shorter than the statutory default ratio, with the non-parole period fixed at 2 years of the total 3 years and 6 months aggregate sentence.

Orders Made

  • The offender is convicted of both offences to which he pleaded guilty.
  • An aggregate sentence of imprisonment for 3 years and 6 months is imposed, commencing 18 October 2021 and expiring 17 April 2025.
  • A non-parole period of 2 years is imposed, commencing 18 October 2021 and expiring 17 October 2023.
  • The earliest date the offender is eligible for release to parole is 17 October 2023.

Key Takeaways

  • The District Court applied a 25% guilty plea discount across both counts, consistent with established principles for pleas entered at an early stage in proceedings.
  • Where an offender commits multiple sexual offences against the same victim in a single episode, some degree of accumulation of sentences remains appropriate to reflect the total criminality, even if the offending forms part of a continuous course of conduct.
  • Special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999 (NSW) can be established on the basis that the offender is a first-time custodial prisoner who would benefit from an extended period of post-release supervision and rehabilitation.
  • A victim impact statement was received and considered as part of the sentencing exercise, giving formal recognition to the harm suffered by the complainant.
  • Under s 66C(3) of the Crimes Act 1900 (NSW), the maximum penalty for sexual intercourse with a child aged 14 or above but under 16 is 10 years imprisonment, and the court assessed each offence as warranting a pre-discount head sentence of between 3 and 3.5 years.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2), 53A

Cases:
- Aslan v R [2014] NSWCCA 114
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Franklin v R [2013] NSWCCA 122
- R v AJP (2004) A Crim R 575
- R v Burchell (1987) 34 A Crim R 148
- R v Gavel [2014] NSWCCA 56
- R v Hudson (unreported, NSWCCA, 30 July 1998)
- R v King [2009] NSWCCA 117
- R v Lulham [2016] NSWCCA 287
- R v Sea (unreported, NSWCCA, 13 August 1990)
- R v Wright [2017] NSWCCA 102