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District Court 18 April 2024

R v COLWILL

[2024] NSWDC 110

Sexual offences
CRIME CHILD SEXUAL OFFENCES FOUR DIFFERENT VICTIMS HISTORICAL OFFENCES SENTENCING OFFENDING IN HOME OF VICTIMS PAEDOPHILIC DISORDER

Citation: R v Colwill [2024] NSWDC 110
Court: District Court of New South Wales
Date: 18 April 2024
Judge: Lerve DCJ

Background

The offender pleaded guilty to four counts of aggravated sexual intercourse without consent, each involving a different victim, all of whom were children at the time of the offending. The offences occurred between 2005 and 2011 in regional New South Wales, with the offender aged between 18 and 24 during the relevant period. The matters were committed for sentence to the Wagga Wagga District Court following proceedings in the Local Court.

Each charge carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The victims were aged 8, 12, 13, and 15 respectively at the time of the offending. The offending occurred in the victims' own homes or family residences.

The agreed facts described a pattern of offending in which the offender gained access to victims in domestic settings, including a grandmother's caravan and a family bedroom, during the Christmas period. The offender was diagnosed with paedophilic disorder. A finding of remorse was also made.

  • What was the appropriate objective seriousness of each offence, having regard to the nature of the sexual acts and the ages of the victims?
  • Whether the standard non-parole period applied to the relevant offences at the time they were committed?
  • What discount applied for the utilitarian value of guilty pleas?
  • Whether special circumstances existed to justify a non-parole period below the statutory proportion?
  • What aggregate sentence was appropriate across four offences with different victims, applying the principle of totality?

Decision

Lerve DCJ assessed objective seriousness individually for each offence. The offending against the youngest victim (aged 8) attracted the most serious assessment. Three of the four offences were assessed as slightly below mid-range, while the offence involving the youngest victim was treated as somewhat more serious, reflected in a marginally higher indicative starting point. The court applied established authority that forms of sexual intercourse cannot be ranked in a hierarchy, and that the absence of additional aggravating features (such as physical violence or threats) does not operate in mitigation.

The full 25% utilitarian discount applied to all counts, as the guilty pleas were maintained through to the sentence hearing. The court confirmed the standard non-parole period of 10 years had been in force since 2003 and applied to each offence. The court found special circumstances warranting a departure from the standard non-parole proportion, resulting in a non-parole period of approximately 65% of the total sentence, rather than the usual 75%. The reasons for that finding were recorded in the reasons but are not set out in the available text.

The court determined that an aggregate sentence was the appropriate mechanism, noting that separate sentences would have required partial accumulation to reflect the existence of different victims, while the totality principle would also have required consideration. The indicative sentences for three of the four offences were set at a starting point of 5 years (non-parole period of 2 years 6 months, balance of 15 months), and for the fourth at a starting point of 5 years 6 months (non-parole period of 2 years 9 months, balance of 1 year 4 months). The court took into account the offender's diagnosis of paedophilic disorder, his limited criminal record, findings of remorse, and the statutory obligation under s 25AA(3) of the Crimes (Sentencing Procedure) Act 1999 to have regard to the trauma of child sexual abuse as understood at the time of sentencing.

Orders Made

  • The offender was convicted on all four counts of aggravated sexual intercourse without consent.
  • An aggregate sentence of 7 years and 3 months was imposed.
  • Non-parole period of 4 years and 8 months, commencing 12 July 2023 and expiring 11 March 2028.
  • Balance of term on parole of 2 years and 9 months, commencing 12 March 2028 and expiring 11 October 2030.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.
  • A copy of Dr Dilati's psychiatric report (Exhibit 1 on sentence) was directed to be forwarded to the Department of Corrective Services with the relevant warrant.

Key Takeaways

  • The District Court confirmed that objective seriousness in child sexual assault matters must be assessed by reference to all facts and circumstances of each individual case, and that the absence of additional aggravating features does not operate in mitigation.
  • Generally, the younger the victim, the more serious the offending will be regarded, a principle drawn from a consistent line of Court of Criminal Appeal authority including R v AJP, R v PGM, and RJA v R.
  • A diagnosis of paedophilic disorder, a limited criminal record, and a finding of genuine remorse were among the subjective factors weighed in the offender's favour at the sentencing stage.
  • Where multiple offences involve different victims, an aggregate sentence remains appropriate, though the existence of separate victims is a factor that would ordinarily call for some degree of partial accumulation in individual sentences.
  • Under s 25AA(3) of the Crimes (Sentencing Procedure) Act 1999, a court sentencing for child sexual offences must have regard to the trauma of sexual abuse on children as understood at the time of sentencing, which may include recent psychological research and the common experience of courts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA(3)

Cases
- Bravo v R [2015] NSWCCA 302
- Johnson v R [2016] NSWCCA 286
- Jolly v R [2013] NSWCCA 76
- Mills v R [2017] NSWCCA 87
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v PGM [2006] NSWCCA 310
- R v Tuala [2015] NSWCCA 8
- RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137
- The Queen v De Simoni (1981) 147 CLR 383