Citation: R v Bielecki [2024] NSWDC 351
Court: District Court of New South Wales
Date: 14 August 2024
Judge(s): Noman SC DCJ
Background
The offender was sentenced for offences committed in February 2004, when he was 21 years old and in an intimate relationship with the victim. The offending occurred over the course of a single evening and involved two counts of indecent assault and an offence of detaining a person for advantage, with a further assault listed on a Form 1 (a document that allows additional offences to be taken into account at sentencing without a separate conviction).
On the night in question, the offender collected the victim, brought her to his apartment under coercive circumstances, and subjected her to two acts of indecent assault while restraining her on his bed. He then detained her in the apartment for an extended period, threatening her with a raised chair and his fists, assaulting her by pulling her hair, and repeatedly preventing her from leaving. The detention ended only when the victim managed to reach a nearby convenience store and called police.
The matter came before the District Court for sentence approximately 20 years after the offending. The significant delay was a relevant consideration throughout the sentencing exercise.
Legal Issues
- How serious were the offences, having regard to the surrounding circumstances and the domestic relationship context?
- Whether the underwear had been removed prior to the assaults, and how that factual finding affected the objective seriousness of the offending
- Whether the background and lead-up conduct (prior to the charged acts) could be taken into account without breaching the De Simoni principle (which prevents a court from sentencing for a more serious offence than that of which the offender was convicted)
- Whether an Intensive Correction Order (ICO) was an appropriate sentencing disposition given the overall sentence length and the passage of time
Decision
The court assessed both indecent assaults as relatively serious. Each involved touching of the genitalia, directly to skin, accompanied by demeaning and abusive language, with the victim physically restrained and already in a state of significant fear and distress. Although the touching was brief on each occasion, those features elevated the gravity of the conduct. The offending occurred within a domestic relationship, which the court identified as a factor informing seriousness.
A factual gap in the agreed facts required the court to determine whether the victim's underwear had been removed before the assaults occurred. The court inferred beyond reasonable doubt that it had been removed prior to the first assault. While this finding elevated objective seriousness, the court characterised its overall significance as modest given that the assaults were serious regardless of that specific circumstance.
The court accepted that the pre-offence conduct, including the broken car window, the threats, and the forced entry into the bedroom, could be considered as context without offending the De Simoni principle. That background informed the victim's state of distress at the time of each offence, rather than attributing to the offender liability for a more serious offence. The court also accepted that immaturity at age 21 was a relevant mitigating factor, noting the offender's limited ability at the time to appreciate the consequences of his actions.
On the question of disposition, the court determined that the total sentence was 2 years and 11 months imprisonment. Applying the statutory requirement under the Crimes (Sentencing Procedure) Act 1999 (NSW) to treat community safety as the paramount consideration, the court found that an ICO would better reduce the risk of reoffending than full-time imprisonment. The court noted that the passage of 20 years since the offending meant there was no current concern for the victim's protection.
Orders Made
- The offender was convicted of the offences
- Sentenced to 2 years and 11 months imprisonment, to be served by way of an Intensive Correction Order (ICO)
- Conditions of the ICO include:
- No further offending
- Submission to supervision by a community corrections officer (supervision not to be suspended, given a prior breach of bail)
- 600 hours of community service work
- The offender was required to report to the Community Corrections Office at Sutherland within 7 days
- The offender was directed to attend the court registry to receive and have explained a copy of the order
Key Takeaways
- The District Court confirmed that contextual conduct preceding charged offences can be considered to establish the circumstances of offending without breaching the De Simoni principle, provided it does not result in the offender being sentenced for a more serious uncharged offence.
- Where agreed facts contain a material ambiguity, a sentencing court must resolve the issue by applying the criminal standard of proof; facts that aggravate the offence must be established beyond reasonable doubt before the court can act on them.
- Brief physical contact during an indecent assault does not necessarily reduce the seriousness of the offending where the victim was restrained, in fear, and subjected to demeaning language throughout.
- An ICO remains available even for offences involving physical and sexual misconduct in a domestic setting, provided the statutory community safety assessment is satisfied and, where relevant, the protection of the victim does not weigh against such an order.
- Significant delay between offending and sentencing does not automatically preclude a custodial term, but can inform the court's assessment of factors including victim protection and the risk of further harm to the community.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 61L, 86(1)(b)
Cases
- R v De Simoni (1981) 147 CLR 383
- R v Nahle [2007] NSWCCA 40