AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 5 October 2023

R v Guevara

[2023] NSWDC 655

Sexual offences

Citation: R v Guevara [2023] NSWDC 655
Court: District Court of New South Wales
Date: 5 October 2023
Judge: Haesler SC DCJ

Background

Following a jury trial, the offender was convicted on 13 counts of sexual offences against four girls committed between approximately 2004 and 2012 in the Wollongong area. The offences spanned charges of aggravated indecent assault, sexual intercourse with a child aged between 10 and 14 years, and committing an act of indecency. He was acquitted of two counts, and the sentencing judge gave him the full benefit of those acquittals.

The four complainants were children at the time of the offending, ranging in age from approximately 9 to 15 years. The offender had personal connections to each child's family. The offending occurred across a range of settings including victims' homes, the offender's home, a car, and a motorboat.

The trial was conducted efficiently. Agreed Facts were tendered, which reduced trial time and minimised distress to the complainants. The sentencing judge recognised that the conduct of the defence had facilitated the administration of justice, and took this into account under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • What individual sentences were appropriate for each of the 13 counts, having regard to objective seriousness and the standard non-parole periods applicable to most offences?
  • How should the individual sentences be structured in aggregate, applying principles of concurrency, accumulation, and totality to avoid a crushing sentence?
  • What subjective factors, including the offender's significant childhood trauma, refugee background, experience of war-related violence, and good character prior to the offending, were relevant to the sentencing exercise?
  • Whether special circumstances existed to justify a non-parole period proportionately shorter than the statutory default ratio.
  • What weight should be given to the breach of trust inherent in the offending, the existence of multiple victims, and the delay between the offending and sentencing?

Decision

Haesler SC DCJ approached the sentencing task by applying the instinctive synthesis method required by the High Court in Markarian v The Queen and Muldrock v The Queen. The judge declined to engage in a staged approach to sentencing and noted the difficulties in assigning a precise position on the scale of objective seriousness to individual offences, while recognising the two legislative guideposts of maximum sentence and standard non-parole period.

The most serious single offence was Count 10: sexual intercourse with a child (digital penetration), for which an individual sentence of 5 years was indicated with a non-parole period of 3 years and 3 months. The remaining counts attracted individual sentences ranging from 3 months (for the act of indecency involving exposure) to 3 years for several of the aggravated indecent assault offences. Across all relevant counts, the judge found special circumstances warranting a reduction in the non-parole period below the statutory default ratio.

Aggravating features included the breach of trust arising from the offender's personal relationships with the victims' families, the multiple victims, and the vulnerability of the children. On the subjective side, the judge took into account the offender's significant childhood trauma, experience of war and war-related violence as a refugee, previous good character, and absence of prior convictions. The administration of justice discount under s 22A was also applied.

Applying the totality principle to avoid a crushing sentence, the judge imposed an aggregate sentence rather than requiring the offender to serve each individual sentence consecutively. The aggregate sentence was structured to reflect the overall criminality while remaining proportionate.

Orders Made

  • Count 1: 1 year imprisonment, non-parole period 7 months
  • Count 2: 2 years imprisonment, non-parole period 1 year 3 months
  • Count 3: 1 year imprisonment, non-parole period 7 months
  • Count 6: 2 years imprisonment, non-parole period 1 year 3 months
  • Count 7: 1 year 6 months imprisonment, non-parole period 11 months
  • Count 8: 3 years imprisonment, non-parole period 1 year 11 months
  • Count 9: 3 years imprisonment, non-parole period 1 year 11 months
  • Count 10: 5 years imprisonment, non-parole period 3 years 3 months
  • Count 11: 3 years imprisonment, non-parole period 1 year 11 months
  • Count 12: 1 year imprisonment, non-parole period 7 months
  • Count 13: 1 year imprisonment, non-parole period 7 months
  • Count 14: 1 year 6 months imprisonment, non-parole period 11 months
  • Count 15: 3 months imprisonment
  • All non-parole periods reflect a finding of special circumstances, carried through to the aggregate sentence
  • Aggregate sentence: 11 years imprisonment commencing 23 July 2023
  • Non-parole period: 7 years 2 months, with eligibility for parole consideration from 22 September 2030
  • Balance of term: 3 years 10 months, commencing 23 September 2030
  • Total sentence expiry: 22 July 2034
  • Release to parole is subject to the State Parole Authority finding that community safety would not be jeopardised, pursuant to s 135 of the Crimes (Administration of Sentences) Act 1999 (NSW)
  • A High Risk Offender caution was given to the offender at the time of sentencing

Key Takeaways

  • The District Court confirmed that the instinctive synthesis approach to sentencing, as required by Markarian and Muldrock, precludes a staged calculation that mechanically adjusts sentences upward or downward from the standard non-parole period by reference to aggravating and mitigating factors.
  • A finding of special circumstances can apply both to individual sentences and be carried through to an aggregate sentence, resulting in a non-parole period proportionately shorter than the default statutory ratio.
  • Facilitation of the administration of justice through the conduct of the defence, including agreement on facts that reduced trial time and minimised complainant distress, is a recognised mitigating consideration under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Significant subjective factors, including refugee status, serious childhood trauma, and experience of war-related violence, are relevant to the sentencing exercise, even where they do not override the gravity of the objective criminality.
  • Where offending involves multiple victims over an extended period and carries a combination of standard non-parole period offences and other charges, the totality principle requires the court to assess whether the aggregate of sentences would produce a result that is crushing or disproportionate to the overall criminal conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 61N(1), 66C, 80F
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A
- Crimes (Administration of Sentences) Act 1999 (NSW), s 135
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- BT v R [2010] NSWCCA 267
- Cahyadi v R [2007] NSWCCA 1
- Campbell v R [2014] NSWCCA 102
- Christov v R [2009] NSWCCA 168
- Corby v R [2010] NSWCCA 146
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- *GSH v R; R v