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District Court 25 May 2023

R v So

[2023] NSWDC 172

Sexual offences

Citation: R v So [2023] NSWDC 172
Court: District Court of New South Wales
Date: 25 May 2023
Judge: Scotting DCJ

Background

The offender, a male born in December 1990, appeared for sentencing after pleading guilty in the Local Court to multiple sexual offences committed against a female victim born in May 1995. The offences occurred between October 2009 and 1 January 2011, when the offender was aged 18 to 20 and the victim was aged 14 to 15.

The offender and victim were connected through a selective high school, where they met on social media in 2008. The offender, who had been a Year 12 student at the school, began attending a nearby university and maintained regular contact with the victim. He volunteered as her musical accompanist and gradually developed a romantic and then sexual relationship with her on school grounds and at their respective homes.

The relationship became sexual in late October 2009 and continued until early 2011, with the broader relationship persisting until June 2014. The offences included digital penetration, indecent assault by touching and sucking the victim's breasts, and sexual intercourse by finger penetration of the victim's vagina on multiple occasions.

  • The appropriate sentence for five counts of sexual intercourse with a person aged over 14 and under 16 (s 66C(3), Crimes Act 1900), one count of indecent assault of a person under 16 (s 61M(2)), and several further offences taken into account on a Form 1 schedule
  • The applicable discount for an early guilty plea entered in the Local Court
  • Whether the offender's personal circumstances, including mental health, displaced the need for full weight to be given to the objective seriousness of the offending
  • The availability and appropriateness of a non-custodial sentencing option, given that an Intensive Corrections Order was statutorily unavailable

Decision

The District Court accepted the offender's plea of guilty and applied a 25% discount on sentence under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999. His Honour applied the standard approach to fact-finding at sentence: adverse findings were made to the criminal standard (beyond reasonable doubt), while findings favourable to the offender were made on the balance of probabilities, in accordance with R v Olbrich (1999) 199 CLR 270.

The court noted that an Intensive Corrections Order was not available for these offences under s 67 of the Crimes (Sentencing Procedure) Act 1999. His Honour took into account the Form 1 offences in accordance with the principles from Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147, meaning those offences increased the sentence on the principal offences to which they were attached, without attracting separate penalties.

The court ultimately imposed Community Corrections Orders for each of the principal offences rather than terms of imprisonment. The orders ran concurrently, producing a combined supervisory period of three years, with conditions including mental health treatment, participation in a sex offender treatment program, travel restrictions, and community service work.

Orders Made

  • Sequence 21 (indecent assault, person under 16): Community Corrections Order, 3 years, with conditions including mental health treatment, sex offender program participation, and 50 hours community service
  • Sequence 23 (sexual intercourse, person aged 14–16, taking into account Sequence 22 on Form 1): Community Corrections Order, 3 years, with the same standard and additional conditions, and 50 hours community service
  • Sequence 24 (sexual intercourse, person aged 14–16): Community Corrections Order, 3 years, same conditions, 50 hours community service
  • Sequence 29 (sexual intercourse, person aged 14–16, taking into account Sequences 10 and 27 on Form 1): Community Corrections Order, 3 years, same conditions, 75 hours community service
  • Sequence 32 (sexual intercourse, person aged 14–16, taking into account Sequences 33 and 34 on Form 1): Community Corrections Order, 3 years, same conditions, 75 hours community service
  • All orders to run concurrently; combined effect is 3 years supervision, travel restriction of 50 km from home for 12 months, and a total of 275 hours community service work
  • The offender was directed to report to the Bankstown Community Corrections Office by 4 pm on 1 June 2023

Key Takeaways

  • The District Court imposed Community Corrections Orders rather than full-time custody for multiple historical child sexual offences, reflecting the combined weight of the early guilty plea, the 25% discount, and the offender's personal circumstances including mental health.
  • Under s 67 of the Crimes (Sentencing Procedure) Act 1999, an Intensive Corrections Order is not an available sentencing option for offences of this type, which constrained the range of non-custodial alternatives before the court.
  • A guilty plea entered in the Local Court attracted the maximum available discount of 25% under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • Form 1 offences were dealt with consistently with the guideline in Attorney General's Application No 1 of 2022, increasing the sentence on the principal offences to which they were attached rather than being sentenced separately.
  • The sentencing court applied the R v Olbrich standard: findings adverse to the offender required proof beyond reasonable doubt, while findings favourable to the offender needed only to be established on the balance of probabilities.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 61N(1), 66C(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 8(1), 21A, 25D(2)(a), 67

Cases
- Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147
- R v MJR (2002) 54 NSWLR 368
- R v Olbrich (1999) 199 CLR 270
- R v Youkhana [2004] NSWCCA 412