AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 23 February 2023

R v Ward

[2023] NSWDC 352

Sexual offences
CRIME SENTENCE

Citation: R v Ward [2023] NSWDC 352
Court: District Court of New South Wales
Date: 23 February 2023
Judge(s): Bourke SC DCJ

Background

A jury convicted the offender, a 25-year-old man, of three counts of sexual offending against a 16-year-old victim with a mild intellectual disability. The offences occurred on 27 April 2020 following a period of contact through the social media application Snapchat. The offender had represented himself as a 17-year-old throughout their online communication.

The victim and her friend, who also had a cognitive impairment, travelled from western Sydney to meet the offender. He drove them to his unit in Lane Cove, where the offending took place. Despite the victim having made clear at the outset that she was not interested in any sexual activity, the offender committed three separate acts of a sexual nature against her.

The sentencing hearing required the court to determine the facts upon which the offender would be sentenced, consistent with the jury's verdicts, and then to determine the appropriate penalty.

  • What facts, consistent with the jury's verdicts, were established for the purpose of sentencing?
  • Whether the victim's cognitive impairment brought her within the definition in s 61HD(a) of the Crimes Act 1900
  • What weight to give to aggravating and mitigating factors in arriving at the appropriate sentence
  • Whether the sentence should be served by way of full-time imprisonment or an Intensive Correction Order (ICO)

Decision

The court found the relevant facts on the basis of an agreed summary of trial evidence. The victim's mild intellectual disability gave her a functional age equivalent for intelligence consistent with a mid-primary school child. Her interpersonal and social judgment skills functioned at the level of a ten-year-old. These findings placed her within the statutory definition of cognitive impairment under s 61HD(a) of the Crimes Act 1900.

The three offences were: grabbing the victim's breasts over her clothing (Count 1, sexual touching without consent); squeezing the victim's buttocks with both hands over her clothing (Count 2, sexual touching without consent); and exposing his erect penis and waving it towards the victim's face while she told him to stop (Count 3, carrying out a sexual act without consent). The maximum penalties were seven years imprisonment for each of Counts 1 and 2, with a standard non-parole period of five years, and three years for Count 3.

The court accepted various mitigating factors, including that the offender had no prior criminal history relevant to sexual offending, had undertaken rehabilitation steps, was in stable employment and accommodation, was in a supportive relationship, and had access to his sister's support. The court noted the real risk of the offender being re-exposed to negative influences in custody.

Weighing those factors, the court was satisfied that community safety would be better served by an ICO rather than full-time imprisonment. The court imposed an aggregate sentence of 18 months imprisonment to be served in the community by way of ICO, subject to standard and additional conditions.

Orders Made

  • A term of 18 months imprisonment imposed, to be served by way of Intensive Correction Order under s 7 of the Crimes (Sentencing Procedure) Act 1999
  • Standard conditions: the offender is to be of good behaviour for 18 months and to accept supervision by Community Corrections
  • Additional conditions:
  • No consumption of illicit drugs or unprescribed prescription medication
  • Completion of drug relapse prevention counselling or similar, as directed by Community Corrections
  • Completion of any other counselling or psychological treatment as directed by Community Corrections
  • Performance of 150 hours of community service
  • The offender was ordered to report to the Community Corrections office at Wyong within seven days
  • Psychological reports directed to be forwarded to the Wyong Community Corrections office
  • Statutory non-publication order in place: the names of the complainant and her friend must not be published

Key Takeaways

  • The District Court confirmed that the victim's mild intellectual disability, assessed through adaptive testing, satisfied the definition of cognitive impairment in s 61HD(a) of the Crimes Act 1900, where her functional social judgment was assessed at the level of a ten-year-old.
  • Aggravating matters at sentence must be proved to the criminal standard (beyond reasonable doubt), while mitigating matters need only be established on the balance of probabilities, a distinction the court applied in identifying the facts for sentencing.
  • Under s 7 of the Crimes (Sentencing Procedure) Act 1999, a court may order that a term of imprisonment be served in the community by way of ICO; a jury conviction on serious sexual offences does not, of itself, preclude that outcome where the sentencing judge is satisfied community safety is adequately served.
  • Rehabilitation, stable employment, supportive personal relationships, and the risk of exposure to negative influences in custody were factors the court weighed in favour of the ICO rather than full-time imprisonment.
  • Breach of any ICO condition may result in referral to the State Parole Authority, which may order the offender to serve the balance of the term in full-time custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HD(a), 61KD(1)(a), 61KF(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7

Cases:
- Stanley v Director of Public Prosecutions [2023] HCA 3