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District Court 5 May 2023

R v WM

[2023] NSWDC 138

Sexual offences
CRIMES SEXUAL OFFENCES SEXUAL INTERCOURSE WITH CHILD UNDER 10 SENTENCE AFTER TRIAL BY JURY PLEA OF NOT GUILTY SENTENCING FACTS

Citation: R v WM [2023] NSWDC 138
Court: District Court of New South Wales
Date: 5 May 2023
Judge: Lerve DCJ

Background

Following a jury trial at the Wagga Wagga District Court, the offender was convicted on three counts arising from a single episode of offending against his natural granddaughter. The victim was aged 4 or 5 years at the time. The offences occurred in the bathroom of a residence in Narrandera while the offender was babysitting the child.

The three counts were: one count of indecent assault on a child under 16 (s 61M(2) of the Crimes Act 1900) and two counts of sexual intercourse with a child under 10 (s 66A(1) of the Crimes Act 1900). The matter proceeded to sentencing remarks on 5 May 2023.

Because the offender contested the charges at trial, no discount for a guilty plea was available. His Honour was clear that the absence of a discount did not represent any increase in penalty for exercising the right to put the Crown to proof.

  • What facts could the court find for sentencing purposes following a jury verdict, and to what standard of proof?
  • What was the appropriate head sentence and non-parole period for three serious child sexual offences arising from a single episode?
  • Whether special circumstances existed justifying a departure from the statutory ratio between the non-parole period and the total sentence?
  • Whether an aggregate sentence was appropriate, and what indicative individual sentences should be recorded?

Decision

Fact-finding after verdict. His Honour applied the principles in The Queen v Olbrich (1999) and Filippou v The Queen (2015): adverse facts must be established beyond reasonable doubt, while facts favourable to the offender need only be proved on the balance of probabilities. In this case, the offender's counsel appropriately conceded that the jury had accepted the victim's account, so the factual findings were made largely without dispute. His Honour was satisfied beyond reasonable doubt that all three offences occurred as part of one continuous episode in the bathroom, and sentenced on the basis that the offending occurred towards the later end of the period pleaded in the indictment, when the victim was closer to 5 years old.

Nature and gravity of the offending. The offending progressed from digital touching of the victim's vagina, to digital penetration, to penile-vaginal intercourse lasting approximately three minutes, which ended only when the victim's aunt knocked on the bathroom door. The victim reported that the intercourse was painful. The offender then admonished the child. The court treated the victim's age, the familial relationship of trust, and the sequential escalation of the conduct as significant factors in assessing the moral culpability of the offending.

Special circumstances. His Honour found special circumstances existed, justifying a non-parole period set at 67.5% of the total sentence (the mathematical midpoint between 65% and 70%), rather than the standard 75%. The reasons included the offender's need for extended supervision on release, having regard to identified rehabilitation needs and issues with substance use. Even on the standard ratio, a meaningful period of supervision would have been available, but the court considered the adjustment appropriate given those factors.

Aggregate sentence. The court imposed an aggregate sentence rather than separate sentences. His Honour nevertheless recorded the individual indicative sentences: 3 years for count 1, 6 years 6 months for count 2, and 8 years 6 months for count 3. Some modest partial accumulation would have been required if separate sentences were imposed, to reflect the distinct acts of sexual intercourse on counts 2 and 3.

Orders Made

  • The offender was convicted on counts 1, 2, and 3.
  • An aggregate sentence of 9 years 6 months was imposed, with a non-parole period of 6 years 5 months.
  • The non-parole period commenced 30 August 2021 and expires 29 January 2028.
  • The balance of term of 3 years and 1 month runs from 30 January 2028 to 28 February 2031.
  • The offender is eligible for release at the expiration of the non-parole period, and His Honour recommended that release.
  • A copy of Dr Pusey's report was directed to be forwarded to the Department of Corrective Services with the relevant warrant.

Key Takeaways

  • Following a jury trial, a sentencing court must find facts adverse to the offender to the standard of beyond reasonable doubt, while facts favourable to the offender need only be established on the balance of probabilities, consistent with Olbrich and Filippou.
  • No discount for a guilty plea is available where a matter proceeds to verdict; the absence of such a discount is not an increase in penalty for defending the charges.
  • Where an offender's counsel concedes that the jury accepted the complainant's evidence, the sentencing court may proceed to find facts substantially as the victim described them.
  • Special circumstances justifying a reduced non-parole period ratio can be established by reference to an offender's rehabilitation and supervision needs on release, even where the resulting sentence remains substantial.
  • An aggregate sentence remains available for multiple offences arising from a single ongoing episode, provided the court records the indicative individual sentences that would otherwise have been imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- R v Storey [1998] 1 VR 359
- Bugmy v The Queen [2013] HCA 37
- Burchell (1987) 34 A Crim R 148
- Chamseddine v R [2017] NSWCCA 176
- Jolly v R [2013] NSWCCA 76
- Maxwell v R [2020] NSWCCA 94
- MC v R [2017] NSWCCA 316
- R v AA [2017] NSWCCA 84
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
- R v Muldoon (unrep, NSWCCA, 13 December 1990)
- R v Naderi [2022] NSWDC 534
- R v PMG [2006] NSWCCA 310
- R v Van Ryn [2016] NSWCCA 1