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District Court 15 December 2022

R v Grech (a pseudonym)

[2022] NSWDC 721

Sexual offencesAssault & violenceDomestic & family violence
CRIME SEXUAL INTERCOURSE WITHOUT CONSENT (DV) POSSESS CHILD ABUSE MATERIAL SENTENCING RELEVANT FACTORS ON SENTENCE LATE GUILTY PLEA AFTER CUT OFF DATE

Citation: R v Grech (a pseudonym) [2022] NSWDC 721
Court: District Court of New South Wales
Date: 15 December 2022
Judge: Haesler SC DCJ

Background

The offender (referred to by the pseudonym "Grech") was sentenced for five serious offences arising from conduct against his wife across several years of marriage and, separately, for possessing child abuse material. The couple had known each other since adolescence, married in 2012, and had what was described as a loving relationship in its early years. The dynamic shifted significantly from early 2015, around the time the complainant was diagnosed with breast cancer and was undergoing intensive treatment including a mastectomy, chemotherapy, and an ovariectomy.

From 2015 onwards, the offender made repeated, escalating sexual demands on his wife despite her illness and expressed reluctance. The agreed facts recorded three separate incidents of sexual intercourse without consent (in March 2015, October 2017, and May 2018), an offence of intentionally choking the complainant without her consent, and a number of additional matters placed before the court on a Form 1 (that is, matters taken into account at sentencing without separate conviction). The child abuse material offence came to light separately and resulted in an early guilty plea.

A prior Local Court intervention in December 2015, following an incident in which the offender grabbed the complainant and smashed a glass door, did not prevent further offending. The court noted that the warning signs from that earlier intervention went unheeded.

  • What sentences were appropriate for three counts of sexual intercourse without consent in a domestic violence context, one count of intentionally choking a person without consent in a domestic violence context, and one count of possessing child abuse material?
  • How should the guilty plea discount be calculated where the early guilty plea scheme under the Crimes (Sentencing Procedure) Act 1999 would otherwise produce an unjust outcome for the offender?
  • What weight should be given to the offender's expressions of remorse, ill health, and other personal circumstances in mitigation?
  • How should the aggregate sentence be structured, having regard to Form 1 matters, the applicable non-parole periods, and time already spent on remand?

Decision

Haesler SC DCJ sentenced the offender on all five matters, delivering reasons ex tempore (that is, orally at the conclusion of the hearing, later revised in writing). The court accepted that the offences against the complainant were serious, noting the particular cruelty of committing sexual violence against a partner who was gravely ill and had diminished physical capacity to resist. The offender's expressions of remorse were not accepted as genuine by the court.

On the guilty plea discount, the court acknowledged a tension in applying the statutory early guilty plea scheme. The Court of Criminal Appeal's decision in Green v R [2020] NSWCCA 230 had recognised that strict application of the scheme can, in some circumstances, produce a miscarriage of justice for an offender. Here, listing arrangements in the court had delayed proceedings rather than any reluctance by the offender to plead. A statutory discount of 5% applied, with an additional reduction for facilitation of the course of justice, resulting in an effective 10% reduction on the indictment matters. The child abuse material offence attracted a 25% reduction reflecting the genuinely early plea on that charge.

The court noted that the complainant was spared the ordeal of giving evidence as a direct consequence of the guilty plea, consistent with observations made by the Court of Criminal Appeal in R v Thompson [2000] NSWCCA 309. The court also dealt with a related breach of a domestic violence order under section 10A of the Crimes (Sentencing Procedure) Act 1999, recording a conviction but imposing no further penalty given the sentences already imposed and the court's prior consideration of the conduct.

An aggregate sentence of eight years imprisonment, with a non-parole period of five years, was imposed. The sentence commenced on 14 April 2022, accounting for the 135 days the offender had spent on remand prior to obtaining Supreme Court bail. Eligibility for release to parole is 13 April 2027, with a three-year parole period expiring 13 April 2030. Whether the offender is actually released on parole will be a matter for the State Parole Authority, determined by reference to community safety considerations under section 135 of the Crimes (Administration of Sentences) Act 1999.

Orders Made

  • Count 1 (Sexual intercourse without consent, DV): 3 years 7 months imprisonment, non-parole period 2 years 4 months.
  • Count 2 (Sexual intercourse without consent, DV): 4 years 6 months imprisonment, non-parole period 2 years 11 months.
  • Count 3 (Sexual intercourse without consent, DV): 4 years 6 months imprisonment (taking into account Form 1 matters), non-parole period 2 years 11 months.
  • Count 4 (Intentionally choke person without consent, DV): 2 years 3 months imprisonment (taking into account Form 1 matters).
  • Possess child abuse material: 1 year 10 months imprisonment.
  • Aggregate sentence: 8 years imprisonment, non-parole period 5 years, commencing 14 April 2022; eligible for release to parole 13 April 2027; parole period of 3 years expiring 13 April 2030.
  • Breach of domestic violence order: Conviction recorded, no further penalty under section 10A Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • The District Court confirmed that the early guilty plea scheme under the Crimes (Sentencing Procedure) Act 1999 does not operate rigidly where its strict application would produce a miscarriage of justice for the offender, consistent with Green v R [2020] NSWCCA 230. Delays attributable to court listing arrangements, rather than to the offender, informed the court's approach to the discount.
  • Sexual violence within a marriage is treated by the sentencing court as no less serious than equivalent offences committed outside a domestic relationship. The complainant's vulnerability arising from serious illness was identified as a significant aggravating feature.
  • A guilty plea that spares a complainant from giving evidence carries sentencing significance, reflecting the Court of Criminal Appeal's recognition in R v Thompson that giving such evidence is an ordeal even when proceedings are sensitively managed.
  • Expressions of remorse carry no mitigating weight where the sentencing court does not accept them as genuine.
  • Under section 135 of the Crimes (Administration of Sentences) Act 1999, release on parole after the non-parole period is not automatic. The State Parole Authority determines release by reference to community safety, not merely the expiration of the minimum term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 135
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 25C, 25D
- Criminal Procedure Act 1987 (NSW), s 166

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146
- Green v R [2020] NSWCCA 230
- MAK v R [2006] NSWCCA 381
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Booth [2009] NSWCCA 89
- R v Clinch (1994) 72 A Crim R 301
- R v Porte [2015] NSWCCA 174
- R v Thompson [2000] NSWCCA 309; (2000) 49 NSWLR 383