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District Court 28 June 2024

R v Griffin

[2024] NSWDC 316

Sexual offences

Citation: R v Griffin [2024] NSWDC 316
Court: District Court of New South Wales
Date: 28 June 2024
Judge: Scotting DCJ

Background

The offender, a 28-year-old man, appeared for sentence after pleading guilty in the Local Court to one count of sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act 1900. The maximum penalty for that offence is 10 years imprisonment.

The offending occurred on 7 February 2020. The offender and the complainant, who were both homeless and using methamphetamine, had met approximately a year earlier. Text messages exchanged before the offence confirmed that the offender knew the complainant was under 16 and that having sex with her was not permissible. On the night in question, both parties injected ice at the offender's aunt's apartment before the offender had sexual intercourse with the complainant. The complainant later overdosed and was found to be pregnant. She gave birth to the offender's son in October 2020.

The offender was arrested in June 2022 when the complainant assisted police in apprehending him during a visit to Sydney. DNA testing confirmed paternity. The offender had been in custody since his arrest, bail having been refused.

  • What was the appropriate head sentence and non-parole period for the offence, having regard to the objective seriousness and the offender's personal circumstances?
  • Whether a 25% discount applied to the sentence in light of the early guilty plea.
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 to justify a non-parole period shorter than the statutory default ratio.
  • Whether an Intensive Corrections Order was an available sentencing option.

Decision

The court applied the standard approach to sentencing fact-finding: adverse findings required proof beyond reasonable doubt, while findings favourable to the offender required proof on the balance of probabilities, following R v Olbrich (1999) 199 CLR 270. The offender was entitled to a 25% reduction in sentence for his guilty plea entered in the Local Court under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999. An Intensive Corrections Order was expressly unavailable for this class of offence under s 67 of that Act.

The court accepted that the offender had an exceptionally difficult background. He experienced serious physical, sexual, and emotional abuse as a young child, spent much of his adolescence effectively homeless, and had developed severe and longstanding methamphetamine dependence. Psychological and psychiatric reports were tendered, and the court accepted these in characterising the offender's background as relevant to moral culpability, without diminishing the seriousness of the offence.

The court found special circumstances under the Crimes (Sentencing Procedure) Act 1999, noting that this was the offender's first significant term of imprisonment. His prior pattern of short custodial terms followed by periods of homelessness indicated a substantial need for structured post-release supervision and support. This justified a non-parole period representing a greater proportion of the total sentence than the default statutory ratio would otherwise require.

The court acknowledged that the offender had been held on protection throughout his custody due to the nature of the offence, which limited his access to rehabilitation programs. COVID-19 restrictions also made custody more onerous. The court recorded the offender's demonstrated remorse, including through his guilty plea and statements to the psychologist, as a mitigating factor.

Orders Made

  • The offender was convicted of sexual intercourse with a child aged between 14 and 16 years contrary to s 66C(3) of the Crimes Act 1900.
  • A term of imprisonment of 3 years was imposed, with a non-parole period of 2 years.
  • The sentence was backdated to commence on 29 July 2022.
  • The non-parole period was set to expire on 28 July 2024; the head sentence expires on 28 July 2025.
  • The offender was ordered to be released on parole on 28 July 2024.
  • The court made a strong recommendation that the offender be supervised and supported on parole, and directed to engage in drug rehabilitation and mental health treatment.

Key Takeaways

  • A guilty plea entered in the Local Court attracted a 25% discount on sentence under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, and an Intensive Corrections Order was not available for this category of sexual offence.
  • Special circumstances were established where the offender's history demonstrated a pattern of short custodial sentences followed by homelessness, indicating that a longer parole period was necessary to support reintegration into the community.
  • Severe childhood abuse, long-term homelessness, and entrenched drug dependence were treated as relevant to the assessment of moral culpability, even where the objective seriousness of the offence was not in doubt.
  • The District Court noted that being held on protection throughout custody, restricting access to rehabilitation programs, was a relevant factor in sentencing, alongside the additional hardship caused by COVID-19 pandemic conditions.
  • Demonstrated remorse, including through the guilty plea and engagement with psychological assessment, was treated as a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 25D(2)(a), 67

Cases
- R v Olbrich (1999) 199 CLR 270
- R v Youkhana [2004] NSWCCA 412