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District Court 14 December 2023

R v Taylor

[2023] NSWDC 577

Sexual offences
CRIME CHILD SEX OFFENCES MULTIPLE OFFENCES AGGRAVATED INDECENT ASSAULT SEXUAL INTERCOURSE WITHOUT CONSENT CIRCUMSTANCES OF AGGRAVATION

Citation: R v Taylor [2023] NSWDC 577
Court: District Court of New South Wales
Date: 14 December 2023
Judge: Coleman SC DCJ

Background

The offender, Sean Taylor, was sentenced following a jury verdict of guilty on six counts and a separate guilty plea to a seventh count. The offences were committed between January 1996 and February 1997 in Quirindi, New South Wales. At the time, the victim was a girl aged between 12 and 13 years who was living with her foster mother, with whom the offender had commenced a relationship and into whose home he had moved.

The offending included two counts of aggravated indecent assault, three counts of aggravated sexual intercourse without consent, one count of being armed with intent to commit an indictable offence, and one count of stalking and intimidating with intent to cause fear of personal injury. All the sexual offences carried the circumstance of aggravation that the victim was under 16 years of age. The offender was aged 28 or 29 at the time of the relevant conduct.

The jury returned its verdict on 17 May 2023. The offender had pleaded guilty to the first count of aggravated indecent assault on the first day of trial, which entitled him to a 10% discount on the sentence for that count.

  • What findings of fact were available to the sentencing court, consistent with the jury's verdicts, including the nature of penetration in the most serious sexual intercourse counts
  • What weight to give mitigating factors, including the offender's background, age, and health conditions
  • Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to head sentence
  • What aggregate sentence was appropriate, applying the principles in the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Fact-finding after the jury verdict. The District Court applied the principles recently restated in R v Cranston [2023] NSWSC 1004, drawing on the High Court authorities concerning post-verdict fact-finding. The court was required to make findings consistent with the jury's verdicts, but was not bound to accept all of the Crown's case, nor required to take the view most favourable to the offender. Where a factual issue could not be resolved, it was to be left aside.

Findings on the individual counts. For the most serious count (count 3), the court found that the offender had struck the victim from behind, causing her to black out and hit a doorframe, before penetrating her vaginally while she was unconscious. On the question of whether penetration was by penis or another object, the court found the Crown's inference, that it was penile penetration, was available and consistent with the victim's description of burning and stinging pain consistent with her experience in other counts. For counts 6 and 7, the court similarly found penile penetration, including one occasion when the offender threatened to kill both the victim and her foster mother if she disclosed the abuse.

Mitigating factors. The court took into account adverse childhood experiences suffered by the offender, his age at the time of sentencing, and a degenerative back condition that would make custody more onerous. These matters were accepted, though they provided limited mitigation given the nature and gravity of the offending. The court observed that the offender had experienced lockdowns and quarantine periods since entering custody, and that his physical condition would not improve with age.

Special circumstances. The court found that special circumstances existed to modestly adjust the statutory non-parole period ratio, based on the offender's age, health, and the need for an extended period of community-based supervision upon eventual release.

Orders Made

  • Count 1 (guilty plea, 10% discount): 18 months imprisonment
  • Count 2: 12 months imprisonment
  • Count 3: 11 years imprisonment
  • Count 5: 3 years and 6 months imprisonment
  • Count 6: 12 years imprisonment
  • Count 7: 8 years imprisonment
  • Count 8: 18 months imprisonment
  • Aggregate term of imprisonment: 20 years
  • Non-parole period: 13 years
  • Sentence commences: 26 July 2021; expires: 25 July 2041
  • First eligible for release to parole: 25 July 2034

Key Takeaways

  • A sentencing court following a jury verdict is constrained to findings of fact consistent with that verdict, but only where the verdict, by necessary implication, reveals what facts the jury must have accepted; within that constraint, the court makes findings as it sees fit.
  • Where the Crown relies on a particular fact at sentencing, it must prove that fact beyond reasonable doubt; where an offender relies on a mitigating fact, proof on the balance of probabilities is sufficient.
  • A guilty plea entered on the first day of trial attracted only a 10% discount, reflecting the limited utilitarian value of the plea at that late stage.
  • Special circumstances justifying a departure from the standard non-parole period ratio were established by a combination of the offender's age, a degenerative physical condition making custody more onerous, and the need for meaningful community supervision after a lengthy term.
  • Aggravated sexual intercourse offences under s 61J of the Crimes Act 1900 (NSW), carrying a maximum of 20 years, attracted individual sentences ranging from 8 to 12 years in this matter, with an aggregate sentence of 20 years reflecting the totality of serious and sustained offending against a child in the offender's household.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M, 114, 562AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21B, 25AA, 25D, 53A

Cases
- R v Cranston [2023] NSWSC 1004
- R v Olbrich (1999) 199 CLR 270
- Weininger v The Queen (2003) 212 CLR 629
- Filippou v The Queen (2015) 256 CLR 47
- Cheung v R (2001) 209 CLR 1
- Leach v The Queen (2007) 230 CLR 1
- Strbak v The Queen (2020) 267 CLR 494
- Savvas v The Queen (1995) 183 CLR 1
- R v Isaacs (1997) 41 NSWLR 374
- Bugmy v The Queen (2013) 249 CLR 571
- Johnson v The Queen [2004] HCA 15
- McL v The Queen (2000) 203 CLR 452
- R v MAK [2006] NSWCCA 381
- R v PGM [2008] NSWCCA 172
- Bravo v R [2015] NSWCCA 302
- Jonson v R [2016] NSWCCA 286
- R v Chan [2000] NSWCCA 345