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District Court 14 December 2022

R v Shiel

[2022] NSWDC 648

Sexual offences
CRIME SENTENCING ONEROUS BAIL CONDITIONS QUASI CUSTODY BACKDATING SENTENCE

Citation: R v Shiel [2022] NSWDC 648
Court: District Court of New South Wales
Date: 14 December 2022
Judge: Fitzsimmons SC DCJ

Background

A 63-year-old man pleaded guilty to three charges of intentionally sexually touching a child aged between 10 and 16 years, contrary to s 66DB(a) of the Crimes Act 1900 (NSW). He was the victim's great-uncle. The offending occurred between 2019 and 2021 at a family home he shared with his elderly father, which the victim visited regularly with her mother before school.

The conduct included French-kissing the victim on multiple occasions beginning on her tenth birthday, and on one occasion in June 2021, touching the victim's vagina under her clothing and directing the victim to touch his penis. A fourth offence of the same kind was taken into account on a Form 1 (that is, a document listing an additional offence the offender asked the court to consider when passing sentence, without it forming a separate conviction).

The offender was arrested in August 2021, remained in custody until October 2021, was then granted bail on strict conditions by the Supreme Court, and was returned to custody in July 2022 following a successful Crown detention application. The sentence hearing proceeded in the District Court in December 2022.

  • What aggregate sentence was appropriate for three offences of intentionally sexually touching a child, with a fourth offence on the Form 1?
  • Whether the offender was entitled to a full 25% discount for his early guilty pleas.
  • Whether the bail conditions imposed after the grant of bail by the Supreme Court were sufficiently onerous to constitute "quasi-custody," warranting further backdating of the sentence beyond the period of actual custody.
  • How many days of backdating were appropriate to reflect the period spent under those stringent bail conditions.

Decision

His Honour found the total aggregate sentence of 3 years and 6 months appropriate in the circumstances, reflecting the seriousness of the offending, the offender's subjective circumstances (including the psychological report tendered on his behalf), and the principles governing Form 1 matters as set out in Attorney General's Application No 1 of 2002. The offender received the full 25% utilitarian discount for his guilty pleas, which were entered at the Local Court and maintained at the sentence hearing.

The offender spent 239 days in actual custody. Following his release on bail in October 2021, he was subject to conditions that included daily police reporting, residing at a specified address, not leaving that address except for legal or medical appointments and only then in the company of nominated family members, and presenting at the front door on demand by police. Police attended the premises frequently, including multiple times in a single evening.

Fitzsimmons SC DCJ accepted that those conditions were sufficiently onerous and stringent to justify treating the period on bail as a form of quasi-custody warranting further backdating. The court noted that such backdating is a discretionary exercise that depends on the individual circumstances of the case, drawing on a line of Court of Criminal Appeal authority including R v Fowler, R v Webb, Hoskins v R, Frlanov v R, and Banat v R. The offender was subject to the strict bail conditions for 259 days, and the court backdated the sentence by a further 100 days to reflect that period.

Special circumstances were found, justifying a non-parole period of two years rather than the standard proportion of the head sentence.

Orders Made

  • The offender was convicted on all three counts to which he pleaded guilty.
  • An aggregate sentence of imprisonment of 3 years and 6 months was imposed, dating from 9 January 2022 and expiring on 8 July 2025.
  • A non-parole period of 2 years was imposed, dating from 9 January 2022 and expiring on 8 January 2024.
  • The earliest date for release to parole was 8 January 2024.

Key Takeaways

  • The District Court confirmed that bail conditions can be so onerous as to constitute quasi-custody, warranting backdating of a sentence beyond the period of actual pre-sentence custody. The assessment is case-specific and discretionary.
  • Where bail conditions require an offender to remain at a residential address except for defined purposes, report daily to police, always be accompanied by a nominated person when absent, and present at the door on police demand, a court may treat that period as analogous to custody for sentencing purposes.
  • A line of Court of Criminal Appeal authority, including R v Fowler [2003], R v Webb [2004], Hoskins v R [2016], Frlanov v R [2018], and Banat v R [2020], establishes the discretionary framework courts apply when assessing quasi-custody claims arising from strict bail conditions.
  • The full 25% utilitarian discount for guilty pleas applies where pleas are entered early and maintained through to the sentence hearing.
  • Special circumstances justifying a reduced non-parole period may be found where the overall sentencing picture warrants a longer parole supervision period than the standard statutory proportion would produce.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 37, 53A

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Banat v R [2020] NSWCCA 321
- Eg v R [2015] NSWCCA 21
- Frlanov v R [2018] NSWCCA 267
- Hoskins v R [2016] NSWCCA 157
- R v Fisher (1989) 40 A Crim R 442
- R v Fowler [2003] NSWCCA 321
- R v Gavel [2014] NSWCCA 56
- R v Webb [2004] NSWCCA 330