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District Court 3 February 2023

R v Moore

[2023] NSWDC 118

Sexual offences
CRIME RELEVANT FACTORS ON SENTENCE LATE GUILTY PLEA VICTIM SAVED FROM GIVING EVIDENCE ASSESSING OBJECTIVE SERIOUSNESS IMPACT ON VICTIM

Citation: R v Moore [2023] NSWDC 118
Court: District Court of New South Wales
Date: 3 February 2023
Judge(s): Haesler SC DCJ

Background

In 2015, the offender was a homeless drug user who had been permitted to stay in a Wollongong home. Living in that home at the time was a girl who was eight years old. The offender digitally penetrated her vagina in the hallway of the residence.

The victim did not disclose the assault until 2021, when she told her father what had occurred. Police were contacted, and the offender, who by that time was living in South Australia, was arrested and brought to New South Wales. He has been in continuous custody since 4 December 2021.

The offender was originally committed for trial on a more serious charge. Shortly before the trial date, a fresh indictment was presented and he pleaded guilty to aggravated indecent assault of a child aged under 16, contrary to section 61M(2) of the Crimes Act 1900.

  • What sentence was appropriate for an aggravated indecent assault on an eight-year-old child, taking into account the objective seriousness of the offending?
  • What discount, if any, applied to the sentence given the late timing of the guilty plea?
  • How should the offender's adverse childhood experiences, including his own history of abuse and subsequent substance dependency, be weighed in sentencing?
  • Whether special circumstances existed justifying a non-parole period shorter than the statutory ratio.

Decision

Objective seriousness. The court held that the offending, involving skin-on-skin contact with the genitalia of an eight-year-old child, was serious enough to require a sentence of imprisonment. Both parties submitted, and the court accepted, that the offending fell in the middle range of objective seriousness. The court noted the absence of features commonly adding aggravation, such as persistence or additional violence, while emphasising that any sexual exploitation of a child constitutes inherently serious conduct warranting the high maximum penalty and standard non-parole period Parliament had fixed.

Late guilty plea. Because the plea was entered on a different, though sufficiently similar, charge shortly before trial, the utilitarian discount available under section 25D of the Crimes (Sentencing Procedure) Act 1999 was limited to 5%. The court nonetheless noted that the plea, though late, spared the child victim from having to give evidence, a factor treated as a distinct and recognised benefit in sexual assault cases involving children. That consideration was woven into the overall synthesis of the sentence rather than producing any additional statutory reduction.

Adverse childhood experiences. Expert evidence before the court identified a nexus between the offender's own history of childhood physical and sexual abuse, disrupted schooling, and prolonged substance misuse, and his general offending behaviour. The court accepted that background and gave it weight, consistent with the High Court's direction in Bugmy that the effects of profound childhood deprivation do not diminish over time. However, the court found that the specific causal link between those experiences and the commission of this particular offence had not been established on the evidence available, particularly given the absence of direct evidence from the offender himself.

Special circumstances. The court found special circumstances existed, given the offender's need for psychological treatment and supervision upon release. This justified a non-parole period proportionally shorter than the standard ratio. The court synthesised all relevant factors, declined to treat sentencing as a mechanical or arithmetical exercise, and imposed a total sentence of three years and nine months with a non-parole period of two years and six months.

Orders Made

  • The offender was convicted of aggravated indecent assault of a child aged under 16 (s 61M(2), Crimes Act 1900).
  • Total sentence of three years and nine months imprisonment, commencing 4 December 2021.
  • Non-parole period of two years and six months, commencing 4 December 2021, with eligibility for parole consideration from 3 June 2024.
  • Parole period of one year and three months, commencing 4 June 2024 and expiring 3 September 2025.
  • The offender was placed on the sex offender register.

Key Takeaways

  • A guilty plea entered shortly before trial on a substituted, though sufficiently similar, charge attracted only a 5% utilitarian discount under section 25D of the Crimes (Sentencing Procedure) Act 1999, even where the plea spared a child victim from giving evidence.
  • The benefit of sparing a child victim from testifying operates as a distinct and recognised sentencing consideration in sexual assault matters, separate from, and additional to, the statutory utilitarian discount: R v Thompson [2000] NSWCCA 309.
  • Adverse childhood experiences, including the offender's own history of abuse and substance dependency, are entitled to full weight in sentencing; under Bugmy v The Queen (2013) 249 CLR 571, the impact of profound childhood deprivation does not diminish over time.
  • Establishing that an offender's background causally contributed to a specific offence requires more than a general nexus between adverse experiences and offending behaviour; the District Court found the specific causal link unproven here in the absence of direct evidence from the offender.
  • Sentencing is not a mechanical or arithmetical exercise. The District Court applied the standard non-parole period as a legislative guideline and synthesised all relevant objective and subjective factors to arrive at a proportionate sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D

Cases
- BT v R [2010] NSWCCA 267
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- GSH v R; R v GSH [2009] NSWCCA 214
- Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Hoare v The Queen (1989) 167 CLR 348
- LB v R [2019] NSWCCA 151
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Paterson v R [2021] NSWCCA 273
- R v Gavel [2014] NSWCCA 56
- R v NJK [2011] NSWCCA 151
- R v Thompson [2000] NSWCCA 309; (2000) 49 NSWLR 383