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District Court 20 October 2023

R v SP

[2023] NSWDC 667

Sexual offences

Citation: R v SP [2023] NSWDC 667
Court: District Court of New South Wales
Date: 20 October 2023
Judge: Tupman DCJ

Background

The offender, referred to as SP, faced sentence for three child sexual offences committed against a young female relative aged between six and seven years old. The offences took place over two consecutive nights during a camping trip near Queanbeyan, at some point between January 2003 and February 2004. At the time, the offender had been left in charge of the victim and her two brothers while their mother was absent interstate.

The offender was the victim's maternal uncle, aged 27 or 28 at the time. His position as the responsible adult carer during that weekend formed a central element of the Court's assessment of the offences.

The matter came before Tupman DCJ for a District Court circuit at Queanbeyan in March 2023. The offender pleaded guilty to the first count on the opening day of trial, and was subsequently convicted by a jury of the remaining two counts.

  • What sentence was appropriate for each of the three offences, taking into account objective seriousness, the offender's personal circumstances, and any applicable mitigating factors?
  • What guilty plea discount, if any, applied under the Early Appropriate Guilty Plea (EAGP) scheme to the late plea entered on the first day of trial?
  • How should the principle of totality operate where three separate offences are sentenced, some concurrently and some with partial accumulation?
  • What non-parole period was appropriate, including whether special circumstances existed to justify a departure from the standard ratio of non-parole period to head sentence?

Decision

Tupman DCJ assessed the objective seriousness of each offence individually. Counts 1 and 2 (aggravated indecent assault, contrary to s 61M(2) of the Crimes Act 1900, each carrying a maximum of 10 years) were assessed as being around the midrange of objective seriousness for that offence type. Count 3 (sexual intercourse with a child under 10, contrary to s 66A of the Crimes Act 1900, carrying a maximum of 20 years) was assessed as slightly above the midrange, involving penile penetration of a young child who was caused pain and bled afterwards.

The Court identified several factors that elevated the objective seriousness of all three offences: the offender was a trusted family member; he was the children's appointed carer at the time; the victim was only six or seven years old, well under the statutory age threshold of ten; and the offending occurred in circumstances of deliberate arrangement. Her Honour noted that the victim's vulnerability as a child in the offender's care was already embedded in the charge elements and did not warrant separate weighting as an additional aggravating factor.

On the plea discount, the EAGP scheme limited the discount for count 1 to 5%, given the plea was entered only on the first day of trial rather than at an early appropriate stage. No discount applied to counts 2 and 3, as the offender was found guilty by the jury after contesting those charges.

Her Honour found special circumstances existed to justify a longer than usual period of supervised parole, given the need for rehabilitation assistance upon release. Applying the totality principle, the Court determined that fully accumulating all three sentences would produce an aggregate of just under 10 years, which was considered excessive. Partial accumulation was applied to arrive at an overall sentence of 7 years with a non-parole period of 4 years.

Orders Made

  • Count 1 (aggravated indecent assault): Fixed term of imprisonment of 22 months, commencing 17 October 2022, expiring 16 August 2024. No separate non-parole period set.
  • Count 2 (aggravated indecent assault): Fixed term of imprisonment of 2 years, commencing 17 April 2023, expiring 17 April 2025. No separate non-parole period set.
  • Count 3 (sexual intercourse with child under 10): Non-parole period of 3 years commencing 17 October 2023, expiring 16 August 2026; parole period of 3 years commencing 17 October 2026, expiring 16 October 2029. Overall term of 6 years.
  • Aggregate effective sentence: 7 years total imprisonment commencing 17 October 2022, expiring 16 October 2029, with an effective custodial period (non-parole period and fixed terms combined) of 4 years, commencing 17 October 2022 and expiring 16 October 2026.

Key Takeaways

  • A late guilty plea entered on the first day of trial attracts only a 5% discount under the EAGP scheme, rather than the more substantial discount available for earlier pleas. No discount at all is available for charges contested at trial and resolved by jury verdict.
  • Under the totality principle, partial accumulation of sentences was applied where full accumulation would have produced a total term the sentencing court regarded as disproportionate to the overall criminality.
  • Vulnerability arising solely from the victim's age and from being in the offender's care was not treated as a separate aggravating factor, because both elements were already incorporated into the elements of the charges themselves.
  • Special circumstances permitting a longer parole period can be established where post-release supervision is considered particularly important to the offender's rehabilitation prospects.
  • Sentencing statistics showed that sentences for these categories of offences had increased substantially since the time of the historical offending, a factor the District Court acknowledged when assessing the appropriate penalty range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571