Citation: R v Scott [2022] NSWDC 663
Court: District Court of New South Wales
Date: 21 October 2022
Judge: Bourke SC DCJ
Background
The offender was a teacher at Cromer High School in Sydney in 1984. The complainant was a male student aged 16 at the time, who had become involved in school music activities and a rock band in which the offender also participated. The offender occupied a quasi-parental role in the complainant's social circle, supplying alcohol and cannabis to young people at gatherings and serving as a mentor figure to the complainant, whose own father was unsupportive of his creative interests.
In December 1984, the offender took the complainant to see a band at a pub, then drove to a beach car park late at night. After the complainant shared a cannabis joint with the offender and became light-headed, the offender joined him in the back of the van and performed fellatio on him. The complainant froze throughout and did not disclose the incident for many years, avoiding the offender thereafter. He first spoke about it publicly in 2018 and made a formal police statement in 2020.
The offender stood trial before Bourke SC DCJ in June and July 2022 on two charges: unlawfully causing the complainant to ingest a stupefying drug, and having homosexual intercourse with a male pupil aged between 10 and 18 years. At the time of sentencing, the offender was already serving a custodial sentence for separate but related offending.
Legal Issues
- What was the objective seriousness of the sexual assault offence, having regard to the nature of the intercourse, the degree of planning involved, and the circumstances of the offending?
- What were the appropriate subjective factors, including the offender's age, health, and any other personal circumstances?
- How should the principle of totality apply when imposing a sentence that runs alongside (or extends) an existing custodial sentence?
- Whether a fixed term, rather than a head sentence with a non-parole period, was the appropriate sentencing structure in the circumstances.
Decision
Bourke SC DCJ found the offender not guilty on the drug-administration charge but guilty of the sexual assault offence, carrying a maximum penalty of 14 years imprisonment. His Honour assessed the objective seriousness of the offending by reference to the nature of the act (fellatio), its duration, the degree of planning involved, and the vulnerability of the complainant as a 16-year-old student in a position of trust with the offender. The absence of ejaculation reduced the severity to a degree, though His Honour found this resulted from the complainant's own distressed reaction rather than any restraint on the offender's part.
His Honour found the offending was preceded by a degree of planning: the offender drove to a private location in the middle of the night and provided the complainant with cannabis. While the offender had been acquitted of stupefying the complainant, His Honour was careful to note that the cannabis was likely intended to lower the complainant's inhibitions, and that no "De Simoni error" (impermissibly sentencing for a more serious offence of which the accused was acquitted) arose from this observation.
On totality, His Honour noted that the offender was already serving a custodial sentence for related offending, the non-parole period of which had already expired. That existing sentence did not adequately encompass the additional criminality before the court. An additional period of actual custody was required.
His Honour determined that a fixed term was more appropriate than a head sentence with a non-parole period, because any head sentence would be wholly subsumed by the existing sentence (which did not expire until March 2027). The fixed term was calculated to reflect what the non-parole period would otherwise have been, with reference to the sentencing ratios applied at the time of the offending and those applied by the Court of Criminal Appeal at resentencing in 2016.
Orders Made
- A fixed term of one year and ten months was imposed, commencing 12 February 2021 and expiring 11 December 2022.
- The offender remains subject to the existing head sentence until its expiry on 12 March 2027.
- Whether the offender is released to parole on 11 December 2022 was left to the State Parole Authority to determine.
Key Takeaways
- A fixed term (rather than a head sentence with a non-parole period) may be appropriate where any head sentence would be wholly subsumed within a longer existing sentence, provided the fixed term reflects what the non-parole period would otherwise have been.
- The District Court confirmed that the principle of totality does not preclude imposing an additional period of actual custody where the existing sentence fails to adequately reflect the criminality of separate offending against a different complainant.
- Fellatio is treated as a serious form of sexual intercourse for sentencing purposes, though the court recognised it generally falls below anal penetration in a non-fixed hierarchy of intercourse offences.
- Where an offender is acquitted of a drug-administration charge but evidence shows cannabis was provided to a victim before an assault, a sentencing court may treat that conduct as indicative of planning without committing a De Simoni error, provided it does not treat the offender as guilty of the acquitted charge.
- A position of trust or quasi-parental authority over a young victim, combined with the deliberate cultivation of that relationship over time, bears on the assessment of planning and objective seriousness in historical sexual assault sentencing.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Obbens [2022] NSWCCA 109
- R v Todd [1982] 2 NSWLR 517