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District Court 22 November 2023

R v Cadman

[2023] NSWDC 661

Sexual offences
CRIME SENTENCE 6 SUBSTANTIVE OFFENCES TWO FORM 1 OFFENCES VICTIM BW 14 YEARS OLD

Citation: R v Cadman [2023] NSWDC 661
Court: District Court of New South Wales
Date: 22 November 2023
Judge: Tupman DCJ

Background

An 18-year-old male offender appeared before the District Court at Taree for sentencing on six substantive sexual assault offences involving three separate victims, together with two further offences taken into account on a Form 1. The offending spanned from March to November 2022. The offender lived in supported accommodation in Forster and held an NDIS package, having been diagnosed with autism spectrum disorder and borderline intellectual functioning.

Two of the victims, BW (aged 14) and KD (aged 13), were connected through a social media relationship that began on Snapchat. The offender was aware of both girls' ages before offending. A third victim, TC, was a disability support worker engaged to assist the offender's younger half-brother. The offences against TC occurred in November 2022 while the offender was on bail for the earlier matters.

The offender had no prior criminal record and had entered early guilty pleas in the Local Court. His autism diagnosis, borderline intellectual functioning, and associated deficits in social communication were accepted as relevant to his moral culpability and his experience of custody.

  • What sentences were appropriate for each of the six substantive offences, having regard to the maximum penalties, standard non-parole periods, and any Form 1 matters?
  • How should the offender's autism spectrum disorder and borderline intellectual functioning affect his moral culpability and the weight given to general deterrence?
  • What discount applied to the sentences by reason of the early guilty pleas, and what percentage was appropriate under the EAGP (Early Appropriate Guilty Plea) scheme?
  • How should the totality principle apply to produce an appropriate aggregate sentence across three separate victims and multiple offences?
  • Were there special circumstances justifying a variation from the standard ratio between the non-parole period and the total term?

Decision

Tupman DCJ accepted that the offender's autism spectrum disorder and borderline intellectual functioning reduced his moral culpability and made him a less appropriate vehicle for general deterrence. The diagnosis also meant he would experience custody more harshly than other offenders might. The court noted, however, that the offender demonstrated only limited insight and remorse, and was assessed as carrying a well above average risk of sexual reoffending.

A 25% discount was applied to each sentence under the EAGP scheme, reflecting the early guilty pleas in the Local Court. The court derived indicative sentences for each offence before applying the discount, including indicative non-parole periods where standard non-parole period offences were involved.

In setting indicative sentences, the court treated the three offences against TC as concurrent with each other, producing a combined term of 12 months for that group. The court then considered accumulation across the three victim groups, which would have produced a total of 6 years. Applying the totality principle (which requires a court to ensure an aggregate sentence is proportionate to the overall criminality rather than simply the sum of individual terms), Tupman DCJ reduced the overall term.

Special circumstances were found to exist, justifying a longer parole period relative to the non-parole period. The factors identified were the offender's first time in custody, his youth, and his mental condition making the custodial experience harder. The aggregate sentence was backdated to 29 June 2022.

Orders Made

  • The offender was sentenced to an aggregate term of imprisonment of 4 years, commencing 29 June 2022 and expiring 28 June 2026.
  • Non-parole period of 2 years, commencing 29 June 2022 and expiring 28 June 2024.
  • Parole period of 2 years, commencing 29 June 2024 and expiring 28 June 2026.
  • Indicative sentences:
  • Offences against BW: Sequence 1, 9 months; Sequence 3, 18 months (with Form 1 taken into account); Sequence 3 (the sexual intercourse offence), 3 years with an indicative non-parole period of 18 months (with Form 1 taken into account).
  • Offences against TC: Sequence 1, 12 months; Sequences 2 and 3, 6 months each.

Key Takeaways

  • A diagnosis of autism spectrum disorder with borderline intellectual functioning was accepted as reducing an offender's moral culpability and as a basis for finding that general deterrence carried less weight in sentencing, consistent with principles applied in cases such as R v Gavel [2014] NSWCCA 56.
  • Under the EAGP scheme, an early guilty plea entered in the Local Court attracted a 25% sentence discount across all offences.
  • Where multiple sets of offences involve separate victims across distinct time periods, simple accumulation of all terms may produce a result inconsistent with the totality principle; the District Court reduced the aggregate from a notional 6 years to 4 years on that basis.
  • Special circumstances justifying a non-standard non-parole period ratio were established by reference to the offender's first time in custody, youth, and the additional harshness of incarceration flowing from his mental condition.
  • Offending that occurs while an accused is on bail for earlier sexual assault matters is treated as an aggravating feature; the TC offences, committed in November 2022 while the offender was on Supreme Court bail, fell into this category.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61KC(a), 66C(1), 66C(3), 66DB(a), 53A
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A

Cases:
- R v Gavel [2014] NSWCCA 56