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District Court 23 October 2023

R v PH

[2023] NSWDC 462

Sexual offencesAssault & violence
CRIME SEXUAL OFFENCES ACT OF INDECENCY

Citation: R v PH [2023] NSWDC 462
Court: District Court of New South Wales
Date: 23 October 2023
Judge: Scotting DCJ

Background

The offender, referred to by the pseudonym PH, appeared for sentence after pleading guilty in the Local Court to two counts of assault female and commit act of indecency to a female under 16 years of age, contrary to s 76 of the Crimes Act 1900. The court also took into account five further counts on a Form 1 schedule. The offender's name was anonymised because some of the conduct occurred when he was a young person.

The offences took place between 1974 and 1978 on the northern beaches of Sydney. The offender, then aged between 15 and 20 years, was a Navy sailor who befriended the complainant's family through their church. During visits to the family home, he repeatedly indecently assaulted the complainant, who was aged between four and eight years old. The two principal offences involved digital penetration of the complainant's vagina.

The complainant disclosed the abuse to her mother in 1994. Around the year 2000, the offender attended a meeting with the complainant and accepted responsibility, breaking down in tears and asking for forgiveness. The complainant reported the matter to police in January 2019, and the offender was arrested in December 2021.

Legal Issues

  • Whether the 2022 amendments to the Crimes (Sentencing Procedure) Act 1999, including provisions restricting the availability of an Intensive Corrections Order (ICO) for child sexual assault offences, applied to this sentence.
  • What sentencing pattern applied to offences under the now-repealed s 76 of the Crimes Act 1900, given its repeal in 1981.
  • Whether the aggravating factor of harm greater than ordinarily expected was established.
  • What weight to give to the offender's mental condition, emotional immaturity, remorse, rehabilitation, and extra-curial punishment when determining the appropriate sentence.
  • Whether an ICO was an appropriate disposition for a sentence of 2 years and 9 months imposed for serious child sexual offences.

Decision

Issue 1: Which version of the Crimes (Sentencing Procedure) Act 1999 applied

The court resolved a contest between the Crown and the offender about whether the 2022 amendments to the Act applied. The Crown argued that proceedings commenced in the District Court, engaging the amended provisions that would restrict the availability of an ICO. Scotting DCJ disagreed, following the reasoning in R v Watson (No 3) [2022] NSWSC 1693 and TJ v R (2009) 76 NSWLR 167, and held that criminal proceedings in New South Wales commence when a person is arrested and charged or an information is laid before a magistrate (at [15]-[19]). Because the offender was arrested and charged on 17 December 2021, before the amendments commenced on 18 October 2022, the pre-amendment provisions applied (at [19]). His Honour expressly declined to follow the contrary approach taken in R v Bowie [2023] NSWSC 207, characterising the reliance on Bektasovski v R [2022] NSWCCA 246 in that decision as misplaced and the relevant reasoning as obiter (at [18]).

Issue 2: Applicable sentencing pattern for s 76 offences

Section 76 of the Crimes Act 1900 was repealed in 1981, and the court found it was unable to discern any relevant sentencing pattern for offences of this kind (at [24]). The court rejected the Crown's suggestion of a direct comparison with s 66DA of the Act, noting that both principal offences involved penetration, which would amount to aggravated sexual assault and could not be considered under that provision without offending the De Simoni principle (at [24]).

Issue 3: Objective seriousness and aggravating factors

The court characterised digital penetration of a young girl's vagina as a serious kind of indecent assault (at [81]). The offences were not isolated, spanned several years, and were committed for the offender's sexual gratification (at [77]). The complainant was aged between six and eight at the time of the principal offences and was a vulnerable victim (at [78]). On the aggravating factor of harm greater than ordinarily expected under s 21A(2)(g), the court found it was not established to the required standard of beyond reasonable doubt, constrained by the limits on the use of victim impact statement content in that analysis (at [89]).

Issue 4: Subjective factors and moral culpability

The court found the offender's moral culpability to be significantly reduced (at [83]). At the time of the offences, he was emotionally and psychologically immature, had suffered serious childhood sexual abuse from age three, had learning difficulties and dyslexia, and was bullied and socially isolated. His ability to recognise the wrongfulness of his conduct and to exercise appropriate control was impaired by his mental condition (at [83]-[86]). Accordingly, the purposes of general deterrence, denunciation, and retribution were afforded less weight (at [86]). The court accepted the offender's remorse as genuine, noting his full confession at the 2000 meeting, his open engagement with report writers, and his guilty pleas (at [93]). The court was also satisfied that he had suffered extra-curial punishment through years of shame and the ongoing prospect of prosecution (at [96]).

Issue 5: Availability and appropriateness of an ICO

Because the pre-amendment provisions applied, the court held that an ICO was an available sentencing option (at [26]). Having imposed an aggregate sentence of 2 years and 9 months, Scotting DCJ was satisfied it was appropriate to order that sentence be served by way of an ICO (at [101]-[104]). The court identified that the offender posed no risk to community safety, that his complex mental condition was causally connected to the offending, and that community-based management would best support his ongoing treatment needs (at [102]-[103]).

Orders Made

  • The offender is convicted.
  • An aggregate sentence of 2 years and 9 months imprisonment is imposed.
  • The sentence is to be served by way of an Intensive Corrections Order (ICO) commencing 23 October 2023 and expiring 22 July 2026.
  • The offender must report to Community Corrections on or before 4:00 pm on 30 October 2023.
  • Standard conditions apply: the offender must not commit any offence and must submit to supervision by a Community Corrections Officer.
  • Additional condition: the offender must receive treatment for his mental health as reasonably directed by Community Corrections.

Key Takeaways

  • Under established New South Wales authority, criminal proceedings commence when a person is arrested and charged or an information is laid before a magistrate. The District Court applied this principle to determine that the 2022 amendments to the Crimes (Sentencing Procedure) Act 1999 did not apply to these proceedings, and preferred the approach in Watson (No 3) over that taken in Bowie (at [15]-[19]).

  • Where there is a strong causal connection between an offender's mental condition and the commission of child sexual offences, general deterrence, denunciation, and retribution may be afforded reduced weight in the sentencing exercise (at [86]).

  • The District Court confirmed that it could not discern a sentencing pattern for offences under the long-repealed s 76 of the Crimes Act 1900, and declined to draw a simple comparison with modern equivalent offences where doing so would engage the De Simoni principle (at [24]).

  • Extra-curial punishment, including prolonged shame and the ongoing possibility of prosecution over decades, is a factor a sentencing court may take into account in arriving at an appropriate sentence (at [96]).

  • A sentence of 2 years and 9 months for repeated, serious child sexual offences was ordered to be served by way of an ICO where the offender presented negligible reoffending risk, had a causally relevant mental condition best managed in the community, and had demonstrated comprehensive rehabilitation over more than four decades (at [101]-[104]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Crimes (Sentencing Procedure) Amendment Act 2022
- Criminal Procedure (Sexual and Other Offences) Act 2006

Cases
- Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147
- Bektasovski v R [2022] NSWCCA 246
- R v Bowie [2023] NSWSC 207
- R v Catell [2019] NSWCCA 297
- R v MJR (2002) 54 NSWLR 368
- R v Olbrich (1999) 199 CLR 270
- R v Watson (No 3) [2022] NSWSC 1693
- R v Youkhana [2004] NSWCCA 412
- TJ v R (2009) 76 NSWLR 167