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District Court 23 November 2023

R v Hardy

[2023] NSWDC 660

Sexual offencesAssault & violence
CRIME SENTENCE SEQUENCE 1 AND 3 S66C(3) CRIMES ACT MAXIMUM PENALTY 10 YEARS I MPRISONMENT SEQUENCE 2

Citation: R v Hardy [2023] NSWDC 660
Court: District Court of New South Wales
Date: 23 November 2023
Judge: Tupman DCJ

Background

The offender, a 32-year-old man, pleaded guilty to three child sexual assault offences involving a 15-year-old complainant with whom he was in an ongoing intimate relationship. Two of the offences occurred on 16 December 2021 at his home in Gloucester; the third occurred approximately two days earlier. The offender was thus around 16 years older than the victim, who was seven months below the age of consent at the time.

The offending came to light after the complainant was involved in a physical altercation with the offender on 16 December 2021, during which he grabbed her by the neck, choked her, slapped her, and made serious threats. She called triple-0, and when police responded, her mother disclosed to them that the complainant had told her about unprotected sexual activity with the offender that morning. The complainant then attended Manning Base Hospital and participated in a Sexual Assault Investigation Kit (SAIK), from which the offender's DNA was recovered.

The offender was sentenced on three substantive charges: two counts of sexual intercourse with a child aged between 14 and 16 (s 66C(3) Crimes Act), and one count of intentional sexual touching of a child aged between 10 and 16 (s 66DB(a) Crimes Act). Two further offences, common assault and intentional choking without consent, were placed on a Form 1 to be taken into account on sentence for the principal sexual intercourse charge.

  • What was the appropriate objective seriousness of each offence, given the limited factual detail in the agreed facts?
  • How should the offender's significant subjective circumstances, including an Indigenous background, childhood trauma, domestic violence exposure, and PTSD, affect the sentence?
  • Whether a 25% discount applied under the Early Appropriate Guilty Plea (EAGP) scheme for pleas entered at the first opportunity in the Local Court.
  • Whether the sentences for the three substantive charges should be served concurrently or partly accumulated.
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the balance of the sentence.

Decision

Tupman DCJ assessed each offence as below mid-range in objective seriousness, acknowledging that the agreed facts provided very limited detail about the circumstances of the sexual offending. The significant age gap between the offender and the complainant, the ongoing nature of the relationship rather than a single isolated act, and the fact that the offending occurred within the context of a domestic relationship were all treated as aggravating features. The complainant was near the top of the relevant age range, having been only seven months short of the age of consent.

The court gave considerable weight to the offender's subjective circumstances. His Indigenous background, severely dysfunctional upbringing, significant exposure to domestic violence, his own childhood sexual abuse, poor educational history, substance use, and diagnosed PTSD were all identified as reducing his moral culpability. These factors were addressed through the framework established in cases dealing with Bugmy considerations, which recognise that profound social disadvantage can bear on moral culpability. A lengthy criminal history, including a prior breach of an Apprehended Domestic Violence Order for which he had already been sentenced to three months' imprisonment, was weighed against these mitigating matters.

The offender received a 25% discount on each sentence in recognition of his guilty pleas at the first opportunity under the EAGP scheme. The court declined to accumulate the sentences for sequences 1 and 2, treating them as the same episode of criminality. While sequences 1 and 3 were the same category of offence, the court treated them as concurrent but arrived at an aggregate sentence reflecting the overall criminality rather than simple accumulation of individual terms. Special circumstances were found to exist, warranting a longer parole period to reduce the risk of institutionalisation and to provide adequate community supervision given the offender's mental health needs.

Orders Made

  • The offender was convicted on all three substantive offences.
  • An aggregate term of imprisonment of 3 years was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, commencing 8 May 2023 and expiring 7 May 2026.
  • The aggregate non-parole period was set at 18 months, commencing 8 May 2023 and expiring 7 November 2024, with a parole period of 18 months thereafter, expiring 7 May 2026.
  • Indicative sentences: sequence 2 (sexual touching) 9 months; sequence 1 (sexual intercourse, with Form 1 offences) 3 years; sequence 3 (sexual intercourse) 22 months.
  • Special circumstances were noted, citing the risk of institutionalisation, the need for extended community supervision, and Bugmy considerations.

Key Takeaways

  • The District Court confirmed that all sexual intercourse offences against children, and sexual touching offences against children, carry a strong presumption of full-time imprisonment; the legislature has expressly excluded the possibility of an Intensive Corrections Order for these offence categories.
  • Where agreed facts provide only minimal detail about the circumstances of sexual offending, a sentencing court will still assess objective seriousness by reference to available contextual factors, including the age gap between offender and victim, the ongoing nature of the conduct, and the domestic relationship setting.
  • A 25% discount under the EAGP scheme applies where an offender pleads guilty at the first available opportunity in the Local Court, reflecting the utilitarian value of the early plea.
  • Profound subjective disadvantage, including an Indigenous background marked by childhood sexual abuse, exposure to domestic violence, and resulting PTSD, can reduce an offender's moral culpability and bear on the weight given to general and specific deterrence, consistently with the Bugmy line of authority.
  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 permits a court to set a total term that reflects overall criminality without mechanically accumulating each individual sentence, particularly where offences constitute the same or closely connected episodes of conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 37(1A) (intentional choking without consent), 61 (common assault), 66C(3) (sexual intercourse with child aged 14 to 16), 66DB(a) (intentional sexual touching of child aged 10 to 16)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3, 5, 53A (aggregate sentencing)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571 (referenced implicitly through Bugmy considerations regarding Indigenous background and social disadvantage)