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District Court 3 August 2023

R v Underwood (a pseudonym)

[2023] NSWDC 309

Sexual offences
CRIME SEXUAL INTERCOURSE WITH CHILD UNDER 16 SEXUAL TOUCHING CHILD UNDER 16 SENTENCE SENTENCE AFTER TRIAL SENTENCE RELEVANT FACTORS ON SENTENCE FACT FINDING

Citation: R v Underwood (a pseudonym) [2023] NSWDC 309
Court: District Court of New South Wales
Date: 3 August 2023
Judge: Haesler SC DCJ

Background

The offender (referred to by the pseudonym "Underwood") was a 20-year-old man who began staying regularly at the home of his 15-year-old cousin ("Fleur") from December 2020. Both individuals had diagnoses on the autism spectrum: Fleur presented with features consistent with ASD, while Underwood had been diagnosed with ASD (level 1, requiring support) with accompanying intellectual impairment, alongside a long history of learning, behavioural, and emotional regulation difficulties.

Between March and July 2021, Underwood engaged in sexual touching and sexual intercourse with Fleur on multiple occasions. Following discovery of a pregnancy test and inappropriate messages, Fleur disclosed the conduct to her mother, and a police video-recorded interview was subsequently conducted.

Underwood stood trial at Wollongong District Court in April 2023 on an indictment containing six counts: two counts of sexual touching a child under 16 (s 66DB(a) Crimes Act 1900) and three counts of sexual intercourse without consent knowing the complainant was not consenting (s 61J(1) Crimes Act 1900), with alternative counts of sexual intercourse with a child under 16 (s 66C(3) Crimes Act 1900). He denied most of the charges, contending that the sexual activity was consensual and that the two were in a de facto "boyfriend and girlfriend" relationship. The jury convicted him on all counts except one principal charge, returning a guilty verdict on the alternative to that count.

  • What facts should the sentencing court find, consistent with the jury's verdicts, including whether Underwood acted with knowledge of non-consent or mere recklessness, and whether "grooming" occurred?
  • What weight should be given to Underwood's age, neurodevelopmental disorder, and intellectual impairment in assessing his objective seriousness and moral culpability?
  • How should the competing sentencing considerations of rehabilitation, specific and general deterrence, retribution, and victim vindication be balanced for a young offender with cognitive impairments?
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) justifying a variation in the standard ratio between the non-parole period and the balance of sentence.
  • Whether the early offer to plead guilty to Count 3 in the Local Court warranted a discount on the penalty for that count.

Decision

The court conducted detailed fact-finding for sentencing purposes, applying the principles in R v Isaacs. Facts adverse to Underwood required proof beyond reasonable doubt, while mitigating matters needed to be established on the balance of probabilities. The court did not accept all of the prosecution's more serious factual contentions, including that Underwood had engaged in deliberate "grooming," finding that some elements could not be established to the requisite standard. The court also considered how Underwood's neurodevelopmental disorder affected his understanding of consent and his decision-making capacity, accepting expert psychological evidence that his ASD and intellectual impairment were genuinely relevant to his moral culpability.

Haesler SC DCJ acknowledged that youth, combined with intellectual and cognitive impairment, can significantly constrain an offender's capacity to make sound decisions, and that such an offender's moral culpability should not be measured by the same standards applied to mature adults. At the same time, the court emphasised that the offences were serious and that the harm caused to child victims of premature sexual activity must be acknowledged, including through victim impact material.

The court found that special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999, justifying an extended parole period relative to the non-parole period. This reflected the need for structured supervision and support upon Underwood's return to the community, given his strong pro-social supports, rehabilitation prospects, and the risks associated with a purely custodial environment as a "negative learning environment" for a young person with his profile.

The sentencing judge was careful to note that even significant mitigating factors must not produce a penalty disproportionate to the gravity of the offending, citing the High Court's guidance in Munda v Western Australia. The early offer to plead guilty to Count 3 while proceedings were in the Local Court attracted a 15% reduction in the penalty for that count, though the court took care to ensure that the accumulation process did not erode that benefit.

Orders Made

  • Aggregate sentence of 5 years 8 months imprisonment, commencing 20 April 2023.
  • Non-parole period of 3 years (reflecting a finding of special circumstances under s 44 Crimes (Sentencing Procedure) Act 1999).
  • Eligibility for release to parole from 19 April 2026.
  • Parole period commencing 20 April 2026; sentence to end 19 December 2028.
  • Individual sentences:
  • Count 1: 9 months imprisonment
  • Count 2: 6 months imprisonment
  • Count 3 (alternate): 1 year 2 months imprisonment (with 15% discount for early plea offer in Local Court)
  • Count 4: 4 years imprisonment (non-parole period 2 years 1 month)
  • Count 5: 3 years 6 months imprisonment (non-parole period 1 year 10 months)
  • Underwood was advised of the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW) to two of the offences, noting that post-sentence detention or supervision orders could be sought but that this legislation could not be taken into account in mitigation.

Key Takeaways

  • A young offender's neurodevelopmental disorder and intellectual impairment are relevant to the assessment of moral culpability and objective seriousness, and courts should not automatically apply the same culpability standards used for mature adults: this principle, confirmed in cases such as DM v R and Clarke-Jeffries v R, was applied directly to Underwood's sentencing.
  • Fact-finding for sentencing must remain consistent with the jury's verdicts, with aggravating facts proved beyond reasonable doubt and mitigating facts on the balance of probabilities; the court is not required to sentence on the version most favourable to the offender, but adverse findings must be established to the requisite standard.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 can be established where an offender's rehabilitation prospects and support needs justify extending the parole period, particularly where a custodial environment may itself pose risks to a vulnerable young offender's development.
  • Significant mitigating factors, including youth, cognitive impairment, and strong pro-social supports, must be weighed against the principle that the final sentence cannot be disproportionate to the gravity of the offending, particularly for serious child sexual offences.
  • Under the Crimes (High Risk Offenders) Act 2006 (NSW), a sentencing court must inform the offender of the legislation's existence where serious offences are involved, but the possibility of future detention or supervision under that Act cannot itself be taken into account in mitigation at sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 66C(3), 66DB(a), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- R v Isaacs (1997) 41 NSWLR 374
- Olbrich v The Queen (1999) 199 CLR 270
- Cheung v The Queen (2001) 209 CLR 1
- Munda v Western Australia (cited for principle re disproportionate mitigation)
- Veen v The Queen [No 2] (1988) 164 CLR 465
- DM v R [2005] NSWCCA 181
- Hearne v R [2001] NSWCCA 37
- KT v R [2008] NSWCCA