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District Court 14 August 2024

R v Stokes

[2024] NSWDC 405

Sexual offences
CRIME SENTENCING A GGREGATE S ENTENCE G UILTY P LEA A CT OF INDECENCY ON UNDERAGE PERSON DANCE TEACHER.

Citation: R v Stokes [2024] NSWDC 405
Court: District Court of New South Wales
Date: 14 August 2024
Judge(s): Bennett SC ADCJ

Background

The offender operated a dance studio for children in the south-western Sydney region. Four child complainants, all students at the studio, alleged that he committed acts of indecency against them between 2012 and 2014, when they were aged between nine and fourteen years. The offending also involved grooming conduct, including exposing indecent material to two of the complainants with the intention of procuring them for unlawful sexual activity.

The matter proceeded to a jury trial on twelve counts. The offender contested all charges, and his counsel cross-examined the complainants on the basis that their accounts were false. The offender then gave evidence in his own defence, denying the conduct alleged.

On the fourteenth day of trial, the Crown disclosed that a police officer had, independently and without prior instruction, conducted further forensic examination of a laptop seized from the offender. That examination uncovered messages, indecent images sent by one complainant to the offender, and images of a young person in a shower and stages of undress. This material directly contradicted the offender's evidence. Shortly after, the offender pleaded guilty to all twelve counts.

  • What weight, if any, should be given to a guilty plea entered mid-trial, after the offender had given false evidence denying the offences?
  • Whether the plea reflected genuine contrition and remorse, as the offender submitted, or was a pragmatic response to the discovery of damaging forensic evidence?
  • How to construct an aggregate sentence that reflects the totality of the offending across four complainants without being crushing, while also satisfying the purposes of sentencing including general deterrence and community protection?
  • Whether a finding of special circumstances justified adjusting the ratio between the non-parole period and the balance of the sentence?

Decision

The sentencing judge found that the guilty plea carried minimal mitigating weight. The offender had contested the charges through a lengthy trial, subjected the complainants to cross-examination that asserted their evidence was false, and then gave evidence himself that was deliberately untruthful. The plea came only after forensic evidence emerged that made his position untenable. The court rejected the submission that the plea demonstrated genuine contrition, accepting instead the Crown's characterisation that the plea was a pragmatic response to an impossible forensic position. A discount of only five percent was applied to each individual sentence.

The sentencing judge considered the objective seriousness of the offending in detail. The conduct involved multiple complainants, occurred in a context where the offender held a position of trust as a dance teacher, and in respect of two complainants included deliberate grooming by exposing indecent material. The court noted that the offending against DM was corroborated by the material found on the seized laptop, which also disclosed images consistent with further offending.

On the question of totality, the court imposed individual sentences on each count but structured an aggregate sentence to ensure the total did not operate harshly or in a crushing manner, consistent with the principles in Markarian and Muldrock. The court found special circumstances existed, given that the offender would require support and supervision on release after serving a substantial custodial term, which justified a parole period somewhat longer than the standard one-third of the total sentence.

Orders Made

  • Aggregate sentence of eight years and six months imposed.
  • Non-parole period of five years, commencing 20 February 2024, with eligibility for parole on 19 February 2029.
  • Sentence to expire on 19 August 2032.
  • Individual sentences specified for each of the twelve counts, each incorporating a five percent discount for the guilty plea, ranging from approximately three years to just under six years.

Key Takeaways

  • A guilty plea entered mid-trial, after the offender had given false evidence and only following the emergence of damaging new forensic material, may attract little or no meaningful discount for contrition. The District Court applied only a five percent reduction in this case.
  • Where an offender holds a position of trust over children, such as a teacher or instructor, that relationship of authority is a significant aggravating factor in sentencing for child sexual offences.
  • Grooming offences under s 66EB of the Crimes Act 1900, particularly where they involve exposing indecent material to children to facilitate further offending, are treated as serious matters warranting substantial individual sentences.
  • An aggregate sentence is the appropriate mechanism where multiple offences arise from related but distinct conduct against different complainants, allowing the court to reflect overall criminality without simply accumulating individual penalties.
  • Special circumstances, within the meaning of the Crimes (Sentencing Procedure) Act 1999, may be established where an offender will require structured support and supervision on re-entry into the community after a lengthy term of imprisonment, justifying an extended parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66EB(2)(a), 66EB(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Tepania v R [2018] NSWCCA 247
- Muldrock v The Queen [2011] HCA 39
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Cheung v R [2001] 209 CLR 1
- R v Olbrich (1999) 119 CLR 162
- Savvas v The Queen (1995) 183 CLR 1
- R v Issacs (1997) 41 NSWLR 374
- Milliner v R [2019] NSWCCA 127